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Judgment
P. Sathasivam, J.—The petitioner is the wife of the detenu, challenges the detention order, passed by the first respondent, detaining her
husband, namely, Kader Ibrahim Sikkander u/s 3(1)(i) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,1974 (in
short ""COFEPOSA Act"") in G.O.No.SR.I/543-4/2005, dated 17-06-2005.
Heard Mr. B. Kumar, learned Senior Counsel for the petitioner, Mr.A. Kandasamy, Additional Public Prosecutor for respondents 1 and 3, and
Mr. P. Kumaresan, Additional Central Government Standing Counsel for second respondent.
Though several contentions have been raised questioning the order of detention, at the foremost, the learned senior counsel for the petitioner
projected that though the Detaining Authority heavily relied on the contents of declaration form, more particularly, the details of goods said to have
been noted on the backside of the said declaration form were not supplied to the detenu along with the grounds of detention. According to him,
inasmuch as those details have been relied on by the Detaining Authority in more than one place, in the absence of supply of the same within the
prescribed time, the detenu was prevented from making effective representation, which violates the Constitutional mandate of Article 22(5).
On the other hand, learned Additional Public Prosecutor by drawing our attention to the statement of the detenu, which is available at page 53
of the booklet would contend that inasmuch as those details are available in his statement and the same was furnished on 21-06-2005, ie., within
the prescribed time, no prejudice has been caused to the detenu, particularly in making representation.
We have carefully considered all the relevant materials and the rival contentions.
With reference to the claim of non-supply of details mentioned in the backside of the declaration form, in the grounds of detention particularly in
paragraph (iii), the Detaining Authority has made the following statement :
(iii) In the Customs declaration made and submitted by you at Customs Table No.10, you had declared the number of hand baggage as two and
the number of checked in baggage as two and the goods brought as car sets 12, camera 18, cigarette 25 and cell phone and the total value as
Rs.2,85,000/- "".
In paragraph (iv), it is stated,
(iv) ... As against the above declaration made by you, the above baggage were found to contain 28 Nos. of Pioneer Car Cassette Players of
models KEH-2035, DEH-7750, DEH-P-5750 and 28 Nos. of accessories together valued at Rs.1,72,500/-, 51 Nos. of Sony Cassette Players
(Walkman) PM.183 valued at Rs.25,500/-, 22 Nos. of Fine Pix S.7000 Digital Cameras valued at Rs.2,20,000/-, 19 Nos. of Nokia 6630
Cellphones with accessories valued at Rs.2,85,000/- and 30 cartons of 555 cigarettes valued at Rs.9,000/-, all totally valued at Rs.7,12,000/- (
CIF) (the market value approximately Rs.11 lakhs).
In the same paragraph, at the end, the Detaining Authority has stated that
... The declaration of Thiru. Ciththeek Rahuman was collected from him under the mahazar"".
The above references make it clear that the Detaining Authority while passing the order of detention had considered several materials, including the
contents of declaration made in the declaration form. Page 12 of the booklet supplied to the detenu shows the details such as name, flight number,
number of checked baggages, number of hand baggages, etc. as well as value of the goods said to have been brought in. A perusal of the said
document at page 12 of the booklet makes it clear that except the above mentioned reference, no details relating to the goods brought in, namely
car sets, camera, cigarette, cell phone, etc., which according to the learned Senior Counsel for the petitioner are mentioned on the backside of the
declaration form, which was not supplied to the detenu along with the grounds of detention, within the prescribed time. No doubt, on
representation, the copy of the same was supplied to the detenu on 20-07-2005. It is not in dispute that the detenu made a representation well
prior to the said date, ie. on 04-07-2005.
The learned Additional Public Prosecutor by pointing out the contents of statement of Sri. Kader Ibrahim Sikkander / detenu, submitted that
inasmuch as those details are available, no prejudice has been caused to the detenu due to non-supply of entries made on the backside of the
declaration form. We are unable to accept the said contention, since as pointed out earlier, the Detaining Authority relying on the contents of the
declaration form in both sides and other materials, passed the detention order. In such circumstances, we are of the view that having relied on
those details relating to the goods mentioned in the backside of the declaration form, it is but proper for the Detaining Authority to supply copy of
the same to the detenu along with the grounds of detention within the stipulated period.
In this regard, the learned senior counsel for the petitioner heavily relied on the judgment of the Supreme Court in the case of Ashok Kumar Vs.
Union of India (UOI) and Others, . While consideringsimilar contention and almost similar stand taken by the Public Prosecutor, the Hon''ble
Supreme Court has concluded,
After considering the submissions, it is crystal clear that the aforesaid documents though placed before the Detaining Authority for his
consideration were not supplied to the appellant within 15 days from the date of the order of detention as provided u/s 3(3) of the said Act. It is
also evident from the affidavit of Shri. S.K. Chaudhary, Under Secretary, Ministry of Finance, Department of Revenue, New Delhi that on the
request of the appellant by his representation dated April 6, 1987, the documents were supplied to him on April 24, 1987. The representation of
the appellant was disposed of by the Advisory Board on April 29, 1987. In these circumstances, it cannot be denied that the failure on the part of
the Detaining Authority to supply the aforesaid material documents prevented the appellant from making an effective representation against the
grounds of detention and as such the mandatory provisions of Article 22(5) have not been complied with. The order of detention in our considered
opinion is, therefore, illegal and bad and the same is liable to be quashed. As the appeal succeeds on this ground alone we do not deem it
necessary to consider the other objections raised against the order of detention.
It is pertinent to refer here to the decision of this Court in Smt. Icchu Devi Choraria v. Union of India wherein it has been held that the right to
be supplied the copies of the documents, statements and other materials relied upon in the grounds of detention without any undue delay flows
directly as a necessary corollary from the rights conferred on the detenu to be afforded the earliest opportunity of making a representation against
the detention, because unless the former right is available, the latter cannot be meaningfully exercised. It has been further held that it is necessary for
the valid continuance of detention that subject to Article 22(6) copies of the documents, statements and other materials relied upon in the grounds
of detention should be furnished to the detenu along with the grounds of detention or in any event not later than five days and in exceptional
circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention. There are no exceptions or
qualifications provided to this rule and if this requirement of Article 22(5) read with section 3(3) of COFEPOSA Act is not satisfied, the continued
detention of the detenu would be illegal and void. Similar observations have been made in the case of Kamla Kanahiyalal Khushalani v. State of
Maharashtra. It is clear that if a relied on document is not supplied to the detenu within 15 days from the date of order of the detention as provided
u/s 3(3) of COFEPOSA Act, it has to be concluded that the detenu was prevented in making an effective representation against the grounds of
detention and as such mandatory provisions of Article 22(5) of the Constitution of India have not been complied with. It is also clear from
paragraph 13 of the said decision, that the relied upon documents have to be supplied along with the grounds of detention without undue delay, in
order to afford earliest opportunity to make representation against the order of detention. In our case, admittedly, a copy of the document was
supplied to the detenu only on 20-07 -2005, whereas the detention order was passed on 17-06-2005. By applying the ratio laid down in the
above referred decision, even the supply of copy of the document on 20-07-2005 cannot be construed as sufficient compliance of the
Constitutional mandate.
It is also relevant to note that in similar circumstances namely, non-supply of copy of the chit, wherein certain details have been made which
were relied on by the Detaining Authority, this court (P. Sathasivam and S. Sardar Zackria Hussain,JJ) based on the reliance of several decisions
of the Supreme Court including Ashok Kumar Vs. Union of India (UOI) and Others, , quashed the detention order challenged in HCP No.318 of
2 004 on 12-08-2004. In an identicall circumstance, similar view has been expressed by us in HCP No.224 of 2005 dated 09-11-2005. It is also
brought to our notice that same view has been expressed by another Division Bench of this court on 28-07-2005 in HCP No.301 of 2005.
In the light of our discussions, we accept the contention raised by the learned senior counsel for the petitioner and there is no need to go into the
other grounds raised in the affidavit filed in support of the above petition. Accordingly, the impugned order of detention is set aside and the petition
is allowed. The detenu is directed to be set at liberty forthwith from the custody, unless he is required in connection with any other case.