USHA AGARWAL versus UNION OF INDIA AND ORS.

11. A document is relevant for considering the case. of a person for preventive detention if it relates to or has a bearing on either of the following two issues : (a) Whether the detenu had indulged in smuggling or other activities prejudicial to the State, which the COFEPOSA Act is designed to prevent; and (b) Whether the nature of the illegal and prejudicial activity and D the manner in which the detenu had indulged in such activity, gave a reasonable !ndication that he would continue to indulge in such activity. In other words, whether he had the propensity and potentiality to continue the prejudicial activity necessitating an order of detention.

12. The document in question did not prove any smuggling/prejudicial E activity on the part of th~ detenu. It only shows that the Department of Foreign Trade had stopped all EXIM benef:.:s to Sandip Exports Ltd., pending further action, as certain illegal activities of that company had come to its notice. The said document was, therefore, neither relevant nor necessary to decide whether the detenu had indulged in smuggling or other prejudicial F activity. The detaining authority obtained satisfaction in regard to that aspect from the material that was placed by the sponsoring authority to show illegal activities which amounted to smuggling.

13. The said document was also not relevant to establish propensity or potentiality of the detenu to continue his illegal activities. The export-import G violations, which amount to smuggling, involve considerable planning, crganization and establishing a network. The propensity is deducible from the modus operandi adopted by the violator, the inclination of the violator to indulge in such activities and the further opportunity to commit such illegal activities. Persons indulging in such ·prejudicial activities routinely create H 'front' companies and firms. The fact that a particular 'front' company is USHAAGARWAL v. U.0.1.[RAVEENDRAN,J.] denied the EXIM benefits will not deter a violator from continuing such A activities, as he can always operate through other 'front' companies/firms. The contention of the detenu that as the said order dated 15/20.4.2004, stopped the EXIM benefits to Sandip Exports Ltd., he could not have continued· the alleged illegal activity, and therefore, the detention order was not Wl!.rranted, is untenable. The EXIM benefits were stopped with reference to only one company namely, San dip Exports Ltd., and that too till finalization of further B action. The investigation and search by the Directorate of Revenue Intelligence, had disclosed that the detenu had other 'front' companies. In fact the detention order makes reference to a similar violation by the detenu by using Mis. Scandia investments (P) Ltd. which was another 'front' company controlled by him and his family. When the benefits of illegal activity are stopped to a C particular company, the brain behind the violation, would merely shift the operations to another 'front' company or start the activities through a new company. It should also be noted that whenever any irregularities/violations in regard to export/import comes to the attention of the department, the benefits are stopped in the normal course, pending finalization of further action. Therefore, it cann<;>t be said that the document whereby EXIM benefits to one of the 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 F 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; G 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 H A 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. c

15. In Dharmishta Bhagat v. State of Karnataka, [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 of detention 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<l bad." In Manjit Singh Garewal@ Gogi v. Union of India, [1990] Supp. SCC 59, this Court has held that where copies supplied at the request of the detenu were illegible, the c-onstitutional safeguards were violated and the order of F detention is liable to be quashed.

16. The High Court has examined the copies that were furnished to the detenu. In rrgard to the grievance relating to illegible copies occurring between pages 493 and 887 and the last page, the High Court founc! that these were copies of the documents which were supplied by the detenu himself, and the G department could do no better than to furnish the copies thereof. If the documents furnished by the detenu to the department contained some portions or pages which were illegible, obviously the copies thereof furnished by the detaining authority to the detenu will also contain such illegible portions. The learned counsel for the appellant contented that if really any document~ · H famished by the detenu was illegible, it could not have been used against the USHA AGARWAL v. U.0.1. [RAVEENDRAN, J.] detenu. But this contention overlooks the fact that a document may contain A several sheets and illegibility of some sheets or parts of some sheets will not come in the way of the authorities making use of the legible portions of the documents furnished by the detenu, supplemented by other documents secured during investigation. There is nothing strange in the department making use of partially legible documents furnished by detenu. Therefore, illegibility of B portions of documents which are copies of documents' furnished by the detenu, cannot be a ground for grievance by the detenu. Insofar as the allegation that some of the sheets between pages 124 to 37IB were illegible, the High Court after having gone through the copies of documents furnished to the detenu, has found no substance in the contention. In fact, while acknowledging the copies of documents, the detenu has made an endorsement that they were C legible.

17. The entire issue of furnishing of illegible copies is with reference to the question whether detenu's right to make an effective representation against his detention is hampered by non-supply of legible copies. The High Court after an examina!ion of the copies of documents found that the detenu was not so hampered. Having gone through the representations made by the detenu against his detention, we also find that he was in no way hampered by the fact that a few of the sheets/copies of documents were partly illegible. We therefore find no merit in the second condition, nor any reason to interfere with the finding of the High Court in this behalf. Re : Point No. (iii)

18. The scope of Clause (5) of Article 22 which provides that when any person is detained in pursuance of an order made under any law. providing for preventive detention, the authority making the order shall, as soon as may F be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against such order, has been examined in several decisions. Interpreting the said provision, this Court in Sk. Abdul Karim v. the State of West Bengal, AIR (1969) SC 1028, held as follows :- "Apart from these enabling and disabling provisions certain procedural rights have been expressly safeguarded by Clause (5) of Article 22. A person detained under a law of preventive detention has a right to obtain information as to the grounds of detention· and11as also the right to make a representation protesting against an order of preventive c detention. Article 22(5) does not expressly say to whom the representati<:>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 Board- under 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 E 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 of the 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 of his 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 considered the representation made by the detenu as soon as possible, A 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 B 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 of India, [ 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 of detention comprehends the right to make such a representation to the authority which can grant such relief, i.e., the authority which c can revoke the order of detention and set him at liberty and since the D 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 E 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, F 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 G concerned authority as early as possible. The fact that the Detaining Authority or the Advisory Board have rejected the representation of the 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 H A 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 B 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 :- c "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 of India, [2003] 9 SCC 652, to contend that delay on the part o(the Central Government E 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 F 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 G 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 H representation. The ratio of that decision squarely applies to this case. USHA AGARWAL v. U.0.1. [RAVEENDRAN, J.]

22. In this case we find that the first representation dated 16.1.2006 A 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. B 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 of detention. 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.