IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 8224 of 2004 For Approval and Signature: HON'BLE MR.JUSTICE C.K.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- ASIF ABDUL KARIM BIDIWALA Versus UNION OF INDIA -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 8224 of 2004 MR SH SANJANWALA, SR.ADVOCATE with MR YOGESH S LAKHANI for Petitioner MR JITENDRA MALKAN for Respondent No. 1 MR MM TIRMIZI for Respondent No. 2 MS HB PUNANAI ASST GOVT PLEADER for Respondent No. 3 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE C.K.BUCH Date of decision: 09/12/2004 ORAL JUDGEMENT Heard Mr.S.H.Sanjanwala, learned senior counsel with Mr.Y.S.Lakhani, appearing for the petitioner-detenu and Mr.M.M.Tirmizi, learned Additional Standing Counsel appearing for Union of India and the concerned Department of Central Government, so also, Ms.H.B.Punani, learned AGP for respondent No.3. .RS 2. #. The present petition is under Article 226 of the Constitution of India praying for appropriate writ, order and direction for quashing the order of detention bearing F NO.673 / 4 / 2004-CUS-VII dated 28.5.2004 issued by Mr.R.K.Gupta, the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi in exercise of the powers vested under Section 3(1) of the COFEPOSA Act. #.(i) The order of preventive detention has been passed on the allegation that the petitioner is responsible for breach of COFEPOSA Act and is required to be prevented from smuggling goods in future. After execution of the order on 1st June, 2004, he is kept under detention in Central Prison Sabarmati at Ahmedabad. 3(ii) For recording the subjective satisfaction, the detaining authority has placed reliance on the grounds conveyed to the detenu when the order under challenge was executed. The petitioner being aggrieved and dissatisfied has challenged the order alleging that the same is illegal, arbitrary, improper and execution of it is violative of privilege flowing from Article 21 and 22(5) of the Constitution of India. The backbone of the facts considered by the detaining authority as substantive ground to pass the order of preventive detention is that the scheme referred to in the gruonds, has been fraudulently availed and undue advantage has been taken and thereby the Union of India lost huge amount in crores. 3(iii) The papers of investigation carried out by D.R.I., according to the detaining authority which clearly indicate that by manipulating several documents and showign false transactions, the petitioner fraudulently availed undue and excessive DEPB and the petitioner thereby defrauded the Government and the officials etc.. The idea to cheat the Government was hatched by the Units mentioned in paragraph-4 and the persons named in the said paragraph including petitioner. The details have been given in tabular form in para-4 of the detention conveyed ( Table mentioned on Page-52-53 ). The Court has considered the contents to appreciate the justification of grounds for detention. 3(iv) The allegation against the present petitioner is that he is the proprietor of M/s Colosperse Chemicals Corporation, Surat and the partner in M/s Cosmos Chemicals and Intermediates, Surat and also in M/s Chevrolet Dyes Intermediates and Agro Chem Industries, Ankleshwar and thereby the petitioner has taken disadvantage. The authorities also considered the statement of the present petitioner recorded on 27th February, 2004 under Section 108 of the Customs Act, 1962 and the allegation is substantially the wrong confessed by the present petitioner. Various aspects including the statement of Mr.Ratnapal Chauhan, Branch Manager of M/s Chinubhai Kalidas & Brothers, CHA firm have been considered. #.(i) One more allegation against the present petitioner is that though the petitioner had claimed rebate fraudulently and such rebates claims were filed with Maritime Commissioner in respect of the past exports of certain associate companies viz. M/s Clarity Intermediates and Pesticides and M/s Cosmos Chemicals and Intermediates as mentioned in para-10 of the ground for detention. 4.(ii) For short, the petitioner is ordered to be detained for the reasons mentioned in the grounds conveyed to the detenu (Annexure-B at page.49) and it is alleged that the petitioner has cheated the Government and caused loss of several Crores of Rupees. It is claimed that this facts traced because secret watch was kept on the activities of the firm headed by the present petitioner. #. The petitioner has challenged the order of detention on various grounds mentioned in para-4 of the Memo of petition and Mr.Sanjanwala, learned senior counsel has taken this Court through the defence and stand taken by the present petitioner and the infirmity in the procedure followed before passing the order and also in execution of the same. While pointing out the infirmities, keeping in the background as to law on prevention detention, Mr.Sanjanwala has argued that the order under challenge is not sustainable in the eye of law on the grounds mentioned in the memo of the petition. However, he has focused his arguments mainly on two grounds. The first point pressed into service by the learned counsel Mr.Sanjanwala is that the order should be quashed on the ground that the representation made by the petitioner to the authority promptly and the delay caused in dealing with the representation vitiates the sustainability of the detention and the order. It is pointed out from the papers available on record by Mr.Sanjanwala that delay caused in dealing with the representation is unreasonable and there is no satisfactory explanation for the Central Government as to why the same was not decided promptly as required by the law, that is, law carved out by number of decisions of this Court and the Apex Court. #. Mr.Sanjanwala has in support of his submission has placed reliance mainly on the decision in MINESHKUMAR HIRALAL PARMAR V. STATE OF GUJARAT, 2002 (3) GLH (UJ) 2. In the cited decision, the Court was dealing with the petition challenging validity of the order of preventive detention passed under The Prevention of Black Marketing and Maintenance of Supply of Essential Committees, 1980, referring one another decision of this Court in Special Civil Application No.9664 2000 dated 16.3.2002 in the case of MULSHANKER KALYANBHAI JANI V. STATE OF GUJARAT, the Court has held that unexplained delay caused in dealing with the representation goes to the validity of the detention and the order and therefore, detention requires to be quashed and set aside. For the sake of convenience, I would like to quote relevant para-8 and 9 of the cited decision. "8. This representation had reached to the office of the detaining authority on 22.4..2002. As the detaining authority had become functus officio immediately on that very day, this representation could have been forwarded to the State Government as well as the Union of India by the detaining authority. However, the same was lying unattended at that time in the office of the detaining authority till 26.4.2002. So this delay in despatching the representation to the Government would vitiate the continued detention of the petitioner and the petitioner should be set at liberty forthwith on this sole ground. 9. In response to a query raised by the Court Mr.Prajapati has submitted that even the day on which the representation had reached to the office of the detaining authority, i.e. 22.4.2002 and on 25.4.2002, the office of the detaining authority might have observed holiday on account of Mahavir Jayanti being a State holiday, the detaining authority was obliged to explain the delay caused, i.e. inaction in despatching the representation to the State Government and the Union of India on 23.4.2002 and 24.4.2002. Thus this delay should be treated as fatal and at least the continued detention should be held to be violative of the Constitutional guarantee enshrined under Article 22(5) of the Constitution of India." In case of RUPESH KANTILAL SAVLA V. STATE OF GUJRAT AND OTHERS, (2000) 9 SCC 201, the Apex Court has held that delayed disposal of the representation if not explained, then, the same should be construed as violative of privilege flowing from Article 21(5) of jurisdiction of The Prevention of Black Marketing and Maintenance of Supply of Essential Commodities Act, 1980. In the cited decision, the Apex Court found that no explanation is offered for delay between 18th of March and 1st May. So, on this ground alone, the order of detention should be quashed. It is also submitted that ratio of the decision, facts are looked into of the case in RAJMAL V. STATE OF TAMILNADU AND OTHERS, AIR 1999 SC 684, would help the present petitioner. #. Strong resistance is placed by Mr.M.Tirmizi, the learned Addl. Standing Counsel for the Central Government before this Court that this is not the case of delay at all, nor the case of non explanation of alleged delay. Initially, reply-affidavit was submitted on behalf of the Union of India but one further affidavit on behalf of respondent No.1 now is available on record dated 2nd December, 2004 whereby the respondent No.1 has tried to explain that the representation received, was processed expeditiously and an attempt to give an account of the time spent in dealing with the representation, has been given by Annexure-I attached with the affidavit. It would be convenient for the Court to quote details shown in Annexure-I. It is in tabular form and according to Mr.Tirmizi, this is a statement showing chronology of events in disposal of the representation made by the present petitioner. Representation is dated 7th July, 2004 and it was received by the detaining authority on 8th July, 2004 at New Delhi at about 17.50 Hrs. Date of decision is 22nd July and the account of time spent, is described as under : --------------------------------------------------------- Sr.No. Date Event --------------------------------------------------------- 1. 07.07.2004 Representation made by the Detenu 2. 08.07.2004 Receipt of representation by the Detaining Authority at New Delhi at 1750 Hrs. 3. 09.07.2004 Receipt of Representation by Secretary (Revenue) 4. 09.07.2004 Representation forwarded to Sponsoring Authority at Ahmedabad by the Detaining Authority. 5. 12.07.2004 Receipt of representation by Sponsoring Authority at Ahmedabad. 6. 13.07.2004 Forwarding of representation by DRI, AZU to SRU, Surat. 7. 14.07.2004 Receipt of representation at Surat to and preparation of draft parawise 16.07.2004 comments. 8. 17.07.2004 & Holidays being Saturday & Sunday 18.07.2004 9. 19.07.2004 Forwarding of Draft parawise comments to AZU, Ahmedabad. 10. 19.07.2004 Forwarding of parawise comments by AZU to CEIB 11. 21.07.2004 Receipt of parawise comments at CEIB, New Delhi at 1735 Hrs. 12. 22.07.2004 Representation replied to the Detenu. --------------------------------------------------------- #. It is rightly argued by Mr.Sanjanwala that non explanation and explanation which could be termed as not satisfactory should be put at par for the purpose of dealing with detention matters. According to Mr.Sanjanwala, the present case in view of the further affidavit, now available to the Court, can be said a case where the respondent has failed in explaining the delay caused. Annexure-I i.e. above referred table simply gives an account of the time spent and at some stages more reasonable time has been consumed and the authority has spent time for the reasons, for which, there was no need to keep representation pending. While enlarging the arguments, Mr.Sanjanwala has pointed out one aspect from the table that emerges from the facts stated in the table that the detaining authority had sent the representation to the sponsoring authority at Ahmedabad on 9th July, 2004. Whether the detaining authority was justified in sending the representation to have remarks from the sponsoring authority is the question raised and if the sponsoring authority was not able to respond promptly by forwarding it to some other agency, whether this exercise even if it is undertaken, can be said to be legitimately justified exercise, needs consideration when the stand of justification is being placed by the respondent No.1. Having considered the details given to the Court in the tabular form, it appears that it was possible for the detaining authority to respond to the representation at the earliest. Mere tending the accounts of time spent cannot be equated with explanation which can be termed as satisfactory explanation. In case of RAJMAL [ supra ], the Apex Court has not even accepted the explanation whereby it was pointed out specifically to the Court that the Hon'ble Minister was on tour and therefore, he could not pass orders promptly. In this cited decision, such explanation for causing five days delay, has not been accepted as justifiable explanation. #. The other ground pressed into service by Mr.Sanjanwala for petitioner also have some force. In the petition, it is categorically averred that the petitioner was supplied xerox copies of about 11,000 pages of documents and it was not physically possible to go through each document or to compare them interse for any purpose. The bunch of papers supplied were placed before the detaining authority when the authority was supposed to record subjective satisfaction on the point of necessity of passing preventive detention order. The list Annexure-C at page.75 produced with the petition clearly states that the documents mentioned in list or the documents relied upon by the detaining authority. It further transpires that it is in tabular form and there appears three columns, of which, the first signify "Serial Number", second is for "Description of the document" relied upon by the detaining authority and the third column indicates the "Page Number". The list itself runs in five and half pages. Item at Sr.No.105 clearly indicates that the documents mentioned at Sr.No.105 were at Sr.No.10946-10951. It is also averred in the petition in para-X of the grounds assailing the order that the following documents are, according to the petitioner, were not legible. : Illegible Documents (i.e. Pages mentioned in the petition ) : 417; 420; 466; 467; 636; 803; 1283; 1293; 1294; 1322; 1329; 1335; 1424; 14555; 1473; 1485; 1486; 1510; 1594; 1595; 1596; 1675; 1676; 1677; 1693; 1694; 1755; 1756; 1865; 1934; 1935; 2007; 2999; 3000; 3015; 3245; 3246; 3247; 3269; 3270; 3276; 3277; 3278; 3337; 3338; 3339; 4209; 5157; 5168; 5178; 5179; 5182; 5183; 5185; 5262; 5263; 5264; 5265; 5266; 5271; 5272; 5351; 5352; 5353; 5376; 5377; 5382; 5383; 5384; 5632; 5633; 5801; 5802; 6127; 6131; 6792; 6826; 6882; 6888; 6945; 6963; 6993; 6998; 7664; 7665; 7671; 7691; 7697; 7731; 7811; 7949; 8295; 8883; 8884; 9446; 9747; 9748; 9749; 9750; 9751; 9789; 9828; 9940; 9731; 9279; 9350; 9351; 9014; 10051; 10052, 10053, 100555; 10056; 10059; 10060; 10147; 10163; 10163; 10196; 10197; 10198; 10202; 10203; 10234; 10235; 10236; 10242; 10246; 10247; 10267; 10362; 10380; 10381; 10382; 10383; 10384; 10389; 10776; 10555; 10531; and 10532. ##. In response to the querry raised by the Court and number of documents have been placed by the learned Counsel before the Court and on perusal of the documents so tendered, to the Court is satisfied, giving a looking on each document that some of them, were partly illegible and some documents are of the nature, the Court finds that some of the documents are illegible and some of them is readable provided more than reasonable good effort is made by a person having perfect eye sight. When such plea has been taken in the cases earlier before this Court by detenu or even by the detenu praying quashing of detention on this very ground, the other High Courts have also developed the practice to have a look on such documents who are claimed to have been illegible. So, that exercise has been done by me and Court shall have to agree with the submission that the following documents at Serial Number; 1. 4721 2. 5271 3. 5272 4. 8295 5. 9350 6. 9351 7. 10203 8. 10531 9. 10532 and 10. 10776 are not legible. The Court shall also have to accept the argument that the documents which are partly legible, cannot be said to be legible document as per the settled legal position. Of course, say of Mr.Tirmizi is that all the documents supplied with the order of detention and especially the grounds of detention conveyed to the petitioner have been recovered either from the custody of the petitioner or from the business places raided by the D.R.I. machinery and many of such documents are faint and are having faint colours. Some documents are of the nature that by little efforts a detenu was able to trace out. Duplicate of such documents lying at Serial Number in the bunch supplied to him. So, it should not be construed as illegible documents have been supplied to the detenu. The attempt to show the original file of the Department of the Officers of the Department who are present in the Court, Mr.Tirmizi has attempted to submit that when the original document is a faint document or it is coloured invoice or voucher, how the Department can get totally legible copy. So, it should not be held that some illegible copies found in the bunch supplied to the detenu, would make the order of detention bad. The other mode of arguments placed before the Court is that it is obligatory on the part of the detenu to satisfy the Court that the documents which are not legible according to the detenu, are of great importance and contents thereof really were relevant to carve out his stand and especially in making representation to get the order of detention revoked. Unless the petitioner is able to satisfy that the illegibility of document has hampered his right to make effective representation, being the relevant document and referred to by the detaining authority, the order of detention should not be quashed and set aside on this technical ground. ##. I have considered the ratio of the decision in case of VIKRAMSINH PRAVINSINH RANA v. STATE OF GUJARAT & ANOTHER, 1988 (2) GLH 413, where the Division Bench of this Court has held that supply of illegible document would amount to non communication of the grounds for detention, and where the Bench has said thus; "We have ourselves looked into the copies of the judgment supplied to the detenu and we find that some of the pages are not legible at all. For example, pages 16 and 42 of the said judgement are not legible. When some of the pages of the judgment are not legible, that amounts to non communication of the grounds and, therefore, the orders of detention and the continued detention are both vitiated." [ Emphasis supplied ] ##. It was possible for the Division Bench of this Court, if the logic applied by Mr.Tirmizi is accepted that effective representation could have been made in reference to contents of page-15 and 17 or any other relevant page-1 to 42 of the decision, but the stand taken by this Court was in reference to the privilege flowing from Article 22(5) of the Constitution of India and therefore, the Court has held that the detention becomes unconstitutional. The another decision cited by learned advocate Mr.Sanjanwala in case of SMT.DHARMISTA BHAGAT V. STATE OF KARNATAKA & ANR., JT 1990 (1) S.C. 192 where the Apex Court has said that non supply of legible copy of the document "Panchnama" amounts to denial of an opportunity of making effective representation and the detention order therefore requires to be quashed. In this cited decision, the Panchnama supplied to the petitioner detenu was not found legible. It is not necessary to quote sub-Article (5) of the Article 22 of the Constitution of India. But the ratio of the decision in case of BHUPENDRASINH V. UNION OF INDIA, 1984 (2) SCC 234 would positively help the present petitioner. ##.(i) At this stage, it is necessary to refer observations of Delhi High Court in case of BHAGAT RAU V. UNION OF INDIA, 1991 Cr.L.J. 2989, wherein the Court has in para-14 observed as under; "14. It is not disputed that the documents which have been found to be illegible are those which were relied upon by the detaining authority for subjective satisfaction against the petitioner. These are, thus, the relief upon documents which were required to be furnished to the petitioner along with the grounds of detention. Can we in these circumstances, say that there has been a compliance of this mandatory provision of supplying the relied upon documents to the petitioner. The answer would obviously be in negative. It is not a case where the petitioner was asking for the copies of the documents which are only referred to and not actually relied upon. In such circumstances, there could be an argument that the petitioner is required to indicate in which manner he has been prejudiced. The case Kumarunnisa v. I.L.O.I. (1990) 4 Judgment Today Supreme Court 7 relied upon by the learned counsel for the respondent, thus, cannot be applicable to the facts of this case. xxx xxx xxx xxx. It is further observed that; 15. xxx xxx xxx xxx . The supply of illegible copies pari passu with the grounds of detention cannot be said to be a compliance with regard to the supply of documents and in the eye of law it would be presumed that the documents which are illegible have in fact not been supplied. xxx xxx xxx xxx. " (ii) In another decision, the Delhi High Court in RAKESH KUMAR GUPTA V. UNION OF INDIA AND OTHERS, 1995 Cri.L.J. 1048 has held that non supply of legible copies of relied upon documents to detenu, is violative of Article 22 (5) of the Constitution of India. As mentioned earlier, when the petitioner is conveyed along with grounds of detention that the documents mentioned in the list in the entire bunch supplied to him, are the documents relied upon by the authority and on the strength of these documents, the authority has recorded subjective satisfaction to pass the order of preventive detention, it will be difficult for the Court to say that the petitioner was under obligation to place relevance of it or to ask to point out specific that as to which illegible document has hampered his right to make effective representative and in what manner. This Court is consistent in holding that non supply of legible copies of documents relied upon by the detaining authority while recording the subjective satisfaction vitiates the order being violative of Article 22(5) of the Constitution and this Court have quashed the order of preventive detention even in cases where the documents relied upon by the detaining authority, have been found even partly illegible. ##. In case of KAMALA DEVI KEDIA V. UNION OF INDIA, 1999 Cri.L.J. 4394, the Calcutta High Court has also held that non supply of legible document to detenu would vitiate the detention. In case of KAMALA DEVI ( supra ), it is further held that there was no material to show that legible portion of the documents were only taken into consideration by the detaining authority. This observations also would go to the root of the validity of the order under challenge in the present case because number of documents in present case, are partly legible only. When certain documents by encircling the illegible portion of that particular document, were shown to the learned Counsel for the respondent No.1 with a querry as to whether encircled portion of that particular documents is legible according to him. In response thereof, Mr.Tirmizi has submitted that similar documents are there in the bunch supplied to the detenu, so it is possible to get the details of illegible portion from the other similar documents which are fortunately legible. But the Court is of the view that the detenu who has been handed documents more than 10951 in numbers, would not be able to get a comparative view of each illegible document by perusing the other document to carve out his stand and for making effective representation.