Madhumathi vs Government of India, Ministry of Finance, Department of Revenue

Mohan, J.—The writ petition is for habeas corpus under the following circumstances:

Information was received by the Madras Zonal Office of the Enforcement Directorate that the petitioner''s husband Vijay Kumar (detenu) and one

Hemraj had been unauthorisedly purchasing foreign exchange on a large scale for the last six months and selling the same on profit to one Kondal

Rao alias V.K. Raja of Kakkinada as well as certain persons going abroad. The said Kondal Rao had been handing over the said foreign

exchange obtained from the detenu and Hemraj to one Shantilal of Kakkinada for purchasing gold. On the basis of this information the officers

searched the residential premises of the detenu situated at No. 26, Swamy Pandaram Street, Chintadripet, Madras-2, the residential premises of

Hemraj at No. 102, Kalvai Chetty Street, Madras-2 and the business premises of one Srimantkumar, brother of the detenu and co-brother of

Hemraj at No. 41, Arunachala Naicken Street, Madras-2 on 14-3-1984. As a result of these searches two chits containing accounts were seized

from the business premises. Similarly 56 sheets of accounts were seized from the residential premises of the detenu at 26, Swamy Pandaram

Street, Madras-2. The search of the residential premises of Hemraj resulted in the seizure of U.S. $ 14,000. During the course of the search of the

detenu''s residential premises one person entered the premises, who later on was identified as Kondal Rao alias V.K. Raja. This person was

searched which resulted in the seizure of a Capstan cigarette packet cover containing some accounts. Room No. 313, Nadar Lodge, Kadappa

Rangiah Chetty Street, Periamet, Madras-3 under the occupation of Kondal Rao was also searched on the same day, viz., 14-3-1984 but it did

not result in any seizure. Statements were recorded from the detenu on three occasions, i.e., on 14-3-1984, 22-3-1984 and 28-3-1984.

The sum and substance of the statements is that one Rajagopal of Coimbatore, who manufactures new jewellery in his shop and sells it in his

shop at Second Crossing, Opanakara Street, Coimbatore, sent through Raja, 2 one-rupee currency notes on which Rajagopal had written ""12/3"".

When Raja handed over these two currency notes containing the writings of Rajagopal the detenu did not have foreign exchange and therefore, the

detenu directed Kondal Rao alias Raja to come and meet him in the evening so that the detenu could arrange for and give him foreign currencies

equivalent to 2 lakhs of rupees. It was only in that connection Kondal Rao had come. Likewise, there were unauthorised dealings in foreign

currency; firstly to the tune of 41,000 American dollars and later 17,010 American dollars, were purchased by the detenu in the market.

Based on this statement as well as the statement of Hemraj and Kondal Rao, an order of detention was passed on 17-8-1984. A copy of the

grounds of detention and copies of statements and documents translated into Hindi were also furnished to the detenu.

It is under these circumstances the present writ petition for habeas corpus has come to be preferred.

Mr. B. Kumar, learned Counsel for the petitioner would urge the following for our consideration:

(1) All the copies of the documents were not translated into Hindi and furnished. We may at once say that this argument has not been persisted and

therefore, we will leave that out of consideration.

(2) There is a delay of ten days in considering the representations of the petitioner, which delay has not been properly explained. In such a case the

ratio laid down in Mintu Bhakta Vs. The State of West Bengal, (paragraph 8) as well as Devi Lal Mahto Vs. State of Bihar and Another, would

clearly apply. The delay of ten days is very vital and therefore, it vitiates the order of detention.

(3) In paragraph 10(a), (b) and (c) of the affidavit the petitioner has contended that the houses of Rajagopal and Shantilal were searched and

statements were recorded from them. If that be so, they ought to have been placed before the detaining authority because but for them, it would

not be possible for the detaining authority to come to a proper conclusion as to detention.

(4) It is true that neither the statement of Shantilal nor that of Rajagopal had been referred to in the order of detention. However, insofar as the

detenu has made specific request for the same he ought to have been furnished with copies of the same. The counter-affidavit in paragraph 11 does

not state whether such statements were recorded or not from either Shantilal or Rajagopal, but it is discreetly silent. Under Article 22(5) second

limb of the Constitution of India a detenu has got a right of representation. That representation must be an effective representation. It is not an

empty formality. Therefore, failure to furnish copies of the statements referred to in the order of detention will per se vitiate the order of detention.

However, where the documents, though not referred to in the order of detention, which are necessary for making effective representation, if not

furnished will vitiate the order of detention. In support of this submission reliance is placed on Smt. Pushpa Vs. Union of India (UOI) and Others, ;

Ramchandra A. Kamat Vs. Union of India (UOI) and Others, and K. Subramaniam v. State of Tamil Nadu, W.P. No. 538 of 1986, order dated

23-4-1986 of this Court. In one of the recent decisions reported in Sita Ram Somani Vs. State of Rajasthan and Others, , the ruling is that the

copy of the bail petition asked for ought to be furnished to the detenu.

In opposing the above submissions, learned Counsel for the department would urge that as regards the delay that has been explained in the

additional counter in detail explaining each and every day''s delay and he has nothing further to add.

It is true that the houses of Rajagopal and Shantilal were searched; perhaps their statements were recorded and he is not in a position to say

with definiteness. Even then, failure to place them before the detaining authority would not vitiate the order of detention because, what is requested

to be decided is whether on the materials placed before the detaining authority, he could have arrived at the subjective satisfaction to detain the

detenu. Beyond that there is nothing incumbent upon the department as to what documents ought to be placed. Therefore, the contrary contention

urged on behalf of the petitioner will have to be rejected.

As regards the documents referred to in the order of detention it is not denied that the detenu would be entitled to the copies thereof so that he

could have an opportunity to make an effective representation. But it is totally a different thing to say that the copies of the documents, though not

referred to in the order of detention which the detenu considers to have relevance, must be issued/furnished to the detenu. There is not a single

ruling to that effect. Both in Smt. Pushpa Vs. Union of India (UOI) and Others, and Ramchandra A. Kamat Vs. Union of India (UOI) and Others,

the Supreme Court laid down that more particulars with reference to the documents which are referred to in the order of detention could be asked

for. Therefore, asking for particulars of the document referred to in the order of detention does not tantamount to documents which are not

referred to. In other words, supply of more particulars does not mean documents not referred to in the order of detention. From this point of view,

the argument advanced on behalf of the petitioner in this report is liable to be rejected.

We will now take up the grounds one by one. In this case, the representation was made on 1-10-1985. It was rejected ultimately on 17-10-

1985. As to what exactly is the reason for the delay, we would rather do well to extract paragraph 2 of the additional counter-affidavit of the

Under Secretary in the Ministry of Finance, Department of Revenue, New Delhi, who has filed the counter-affidavit on behalf of the Union of

India, as follows:

Regarding the representation dated 1-10-1985 it is submitted that the same was received by the Ministry at 5 p.m. on 7-10-1985. On 8-10-1985

a wireless message was sent to the detenu, through the Central Prison, Madras, acceding to his request for assistance of a friend, during the

Advisory Board hearing. The Advisory Board hearing was fixed on 9-10-1985 and was adjourned to 16-10-1985. On 10-10-1985, the case

records relating to the detenu were handed over to the Enforcement Directorate, New Delhi, for placing before the Advisory Board. Subsequently,

the dealing officer was away out of Delhi. 12-10-1985 and 13-10-1985 were holidays being second Saturday and Sunday. The case records

handed over to the Directorate on 10-10-1985 were received back on 16-10-1985. On 17-10-1985, the dealing officer, who returned to Delhi,

put up the representation on file. On the same day, the representation was considered and rejected. On 18-10-1985 a communication was sent to

the detenu, rejecting his representation.

The above extract clearly shows that each day''s delay has been properly explained and therefore, we hold that there is no undue delay in

considering the representation. Law is well settled that only if the representation has been allowed to lie over or if the authority had slept over the

representation and thereby prejudiced the detenu it would be fatal. But that is not the case here.

Coming to the third argument, it is not possible for us to say as to what materials ought to be placed before the detaining authority by the

respondent. It is entirely for the authority seeking an order of detention to place such .materials as might be considered to be relevant for enabling

the detaining authority to come to a subjective satisfaction. In other words, the authority takes the risk by withholding a few of the documents

which might be relevant, because ultimately the detaining authority may say that the materials placed before him are not sufficient to arrive at the

subjective satisfaction. That is why though prudence would dictate placing of all the documents that does not mean that this Court should intervene

and find out as to what materials ought to have been placed before the detaining authority to arrive at the subjective satisfaction on the basis of

which the order of detention can be passed. In this case, a perusal of the grounds of detention reveals that the detenu had been indulging in large

scale acquisition and sale of foreign exchange and further he acquired foreign exchange from Hemraj and sold at a premium. Under those

circumstances all the relevant statements which the authority considered necessary had been placed and it is not denied before us that copies of all

those statements referred to in the order of detention have been furnished to him. If that be so, we are not impressed with the argument that the

statements of Rajagopal and Shantilal ought to have been placed before the detaining authority. Once again, we would reiterate that it is not for us

to say as to what ought to have been placed or ought not to have been placed. Of course, with reference to the documents relied on, if further

particulars which are material have not been furnished to the detenu, then it is an entirely different matter. But the detenu cannot contend that these

statements of Rajagopal and Shantilal are relevant and therefore, they ought to have been placed. Hence we reject this submission.

Coming to the last of the submissions, namely that the statements of Shantilal and Rajagopal ought to have been furnished to him, we would

refer to the contra contention in paragraph 11 of the counter-affidavit, which is as follows:

� The detenu, in the said representation, had asked for details regarding Rajagopal, Shanthilal, Kondal Rao and Ibrahim. In this connection it is

submitted that the charge against the detenu is that he acquired foreign exchange from Hemraj and sold them at a premium. Action against Hemraj

had been taken and copies of the statements recorded from Hemraj have been given to the detenu. With regard to Kondal Rao, the detenu had

already been supplied with all the copies of documents such as statement (translated in Hindi) and the Capstan cigarettee packet along with the

grounds of detention. Kondal Rao was also detained under COFEPOSA and he has completed his detention period. Regarding Ibrahim, it is

submitted that action taken against him has no relevance to the detenu''s case since the detenu has nowhere admitted having acquired foreign

exchange from Ibrahim. Ibrahim was also detained under COFEPOSA and he has completed the period of detention.

The question is whether failure to supply these documents inspite of the detenu having asked for them, would vitiate the order of detention?

Even at the outset we would like to point out that no authority was placed before us to enable us to hold that a document not having been

referred to in the order of detention, if copies of the same are asked for, for making a representation under Article 22(5), must be furnished.

Reliance is placed on Smt. Pushpa Vs. Union of India (UOI) and Others, . paragraph 14 at page 1959 (cited supra). One of the conten tions that

was urged in that case was there was inordinate delay in complying with the request of furnishing of copies of the documents, which would enable

the detenu to make a representation and therefore further delay in applying the mind to the representation. What was laid down in answer to this

question was as follows:

But Shri Jethmalani urged that it is now a matter of day-to-day experience: of the detaining authority that the detenu is bound to ask for copies and

therefore, presumably a time has come to administer a warning that the copies of documents should be kept ready along with the grounds of

detention so that as soon as the request is made the same may be furnished. It would be. quite in consonance with the zealous anxiety for the

liberty of a citizen that the detaining authority should keep the copies of the relevant documents referred to in the grounds of detention ready so that

the same can be supplied as soon as the request is received. It must, however, not be overlooked that the request sometimes may be for copies of

such documents as are not within the easy contemplation of the detaining authority or as may not be directly relatable to the grounds of detention

and some time is bound to be spent in finding out the documents and preparing the copies of the same. Undoubtedly when the Court is dealing with

question of deprivation of liberty of a citizen it would like to remind the detaining authority that as grounds of detention have to be served within 5

days from the date of detention it would be an additional safeguard and make the constitutional right of making the representation effective and

purposive to keep at least copies of those documents ready which have been taken into account while preparing the grounds of detention so that

the copies can be furnished as expedi tiously as possible. But having said this, on the facts of this case looking to the long list of documents, copies

of which were demanded by the learned advocate on behalf of the detenu, the time taken does not appear to be unreasonable. So also the time

taken in considering the representation does not appear to be unreasonable. Therefore, the contention that on this account the order of detention is

vitiated cannot be entertained.

A mere reading of the above extract would show that this decision does not support the contention of the petitioner.

Coming to Ramchandra A. Kamat Vs. Union of India (UOI) and Others, the following observations are found at page 767 (paragraph 7):

It is alleged by the detenu that there had been unreasonable delay in furnishing of the statements and documents referred to in the grounds of

detention. It is the duty of the detaining authority to satisfactorily explain the delay, if any, in furnishing of these documents.We are in this context

not rejerrring to the statements and documents not referred to in the grounds of detention for it may be that they are not in the possession of the

detaining authority and that reasonable time may be required for furnishing copies of the relevant documents, which may not be in his possession.

(emphais supplied by us) The use of two negatives would mean positive, in that it means ""only those documents referred to in the order of dention"".

We will refer to one more ruling. In Prabhu Dayal Deorah Vs. The District Magistrate, Kamrup and Others, . It has been observed in

paragraph 64 at page 198 as follows:

Nor are we satified that the fact that the petitoners could have asked for further particulars but that they did not do so, would be enough to salvage

the orders of detention. The right to. call for particulars has been recognised in The State of Bombay Vs. Atma Ram Sridhar Vaidya, as flowing

from the constitutional right to be afforded a reasonable opportunity to make representation. This Court said in Lawrence Joachim Joseph D''souza

Vs. The State of Bombay, that if the grounds are not sufficient to enable the detenu to make a representation, the detenu. if he likes may ask for

pariculars which would enable him to make the representation and the fact that he had made no such application for particulars is a circumstance

which may well be taken into consideration, in deciding whether the grounds can be considered to be vague.

What has been considered is the right to call for particulars. That is entirely different from the right to ask for copies of the documents not referred

to in the order of detention. Therefore, this argument also is not tenable.

Accordingly, we conclude that there are no merits in this writ petition and the same will stand dismissed.