Case: D. Anuradha Vs. Joint Secretary &amp; Another

1. This appeal is preferred against the judgment of the Division Bench of the Madras High Court in a Habeas Corpus Petition filed by the present appellant challenging the order of detention passed by the authorities under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as ‘COFEPOSA Act?). The detention order was passed on 5.2.1996 and executed on 7.2.1996. The brief facts which are necessary to appreciate the contentions advanced by the appellant are as follows2. The detenu was born in Thanjavur district in Tamilnadu. He completed his Plus Two education in 1981 and later joined the B.E. Course in an Engineering College and completed the same in 1986. His father was a Government servant working in a Local Administrative Department at Trichy. During 1988-89, the detenu came to Madras and worked as a Trainee in Madras Builders? Office. Later, he entered the field of real estate business and came in contact with others in that business. A firm was formed in 1991 by name M/s. Emerald Promoters Pvt. Ltd. The detenu married the present appellant in 1992. Apart from M/s. Emerald Promoters Pvt. Ltd., the detenu had an interest in some other financial concerns as well. The detenu was also the proprietor of M/s. T.C.V. Engineering Pvt. Ltd. in Madras. In 1995, the Enforcement Directorate received certain information that the detenu was engaged in transactions in violation of the provisions of the Foreign Exchange Regulation Act, 1973 (hereinafter being referred to as ?FERA?). Notices were issued to the detenu under Section 40 of the FERA on 12.7.1995, 15.7.1995, 3.8.1995, 17.10.1995 and 25.10.1995. According to the Enforcement Directorate, the detenu evaded all these notices for about four months and ultimately the detenu was examined and his statements were recorded on various dates starting from 1.11.1995 to 31.1.1996. The Enforcement Directorate alleged that a letter dated 4.8.1994 of the Barclays Bank, Sutton, UK, with a list attached thereto, indicated that 21 cheques involving a total amount of US $ 1,04,93,313 were deposited in the account of M/s. Dipper Investments. Subsequently, some documents were recovered by the Enforcement authorities which revealed that 13 cheques for US $ 62,61,313 favouring M/s. Dipper Investment Ltd., were to be credited in account No. 3001-8937 of the said company in Barclays Bank3. The detenu was questioned on his trips abroad to varied destinations such as Singapore, Hong Kong, London, etc. He was also questioned regarding his financial connection with Nainish Desai and one Ramachandran and also one Mr. Rajoo of Malaysia about depositing one million Singapore Dollars with the company, by name M/s. Adventure Holding Pvt. Ltd., Singapore, so as to make the detenu the Director of that Company in place of one N.C. Rangesh. From the materials collected by the Enforcement Directorate, the Detaining Authorities came to the conclusion that an order under Section 3(1) of the COFEPOSA Act is to be passed for preventive detention of the detenu4. On behalf of the detenu, the present appellant raised several contentions challenging the detention order. The Division Bench of the High Court rejected all those contentions and held that the detention order was legal. One of the contentions raised by the appellant was that the detenu was having the status of an NRI and, therefore, he was beyond the reach of the provisions contained in the COFEPOSA Act. This plea was elaborately considered by the High Court and rejected. The other contention raised by the appellant was that the representation submitted on behalf of the detenu was not considered in time. There was a delay in dealing with that representation and hence there was a serious infraction of the valuable right of the detenu under Article 22 of the Constitution. It was also argued that the COFEPOSA Advisory Board was not supplied with the materials as contemplated under Section 8 of the COFEPOSA Act and thus there was no proper reference to COFEPOSA Advisory Board. These pleas were also rejected by the Division Bench.

Reasoning: On a survey of the various authorities, it is clear that the representation, if any, submitted on behalf of the detenu shall receive immediate attention and that the same shall be considered by the Appropriate Authorities as expeditiously as possible. Any delay would naturally cause prejudice to the detenu17. In the instant case, as already noticed, the detenu himself filed two representations and on his behalf, his Counsel submitted another two representations and there is no allegation that these representations were not considered in time. But the representation filed by the present appellant, the wife of the detenu was disposed of only with a delay of 119 days. The delay was caused mainly due to non-availability of the translated copy of the representation. The representation was made in ?Tamil? and it is submitted by the Union Government that it took about three months to get a proper translation of the representation and as soon as the translation was received, the authorities took urgent steps and it was disposed of within a short period. In the facts and circumstances of the case, we do not think that there was inordinate delay in disposing of the representation21. Considering the entire facts, we do not think that in this case the detention is liable to be quashed on the ground that one out of the five representations was not disposed of in time. The delay has been satisfactorily explained and the failure to get the translated copy of the representation was an unavoidable delay. We do emphasise that such delays should be avoided25. In the instant case, the statement of Rangesh did not divulge any details which would have in any way affected the decision of the Detaining AuthorityThe learned Counsel for the appellant lastly contended that since the detention order was passed only in February 1996, that is, after about two years of the alleged involvement of the detenu for violation of the provisions of FERA on the basis of stale materials, the same was illegal. The allegations made against the detenu are of serious nature. It involved several crores of rupees. The various transactions had been done in a clandestine manner with the help of foreign nationals and the detenu himself had claimed to be at Indian. All these materials had contributed to the delay and the Detaining Authority had to consider these materials andk the transactions. It was submitted by the learned Counsel for the respondent that the detention order was not passed on stale materialsThe learned Counsel for the appellant had urged before the High Court that the detenu was at Indian and, therefore, the detention order could not have been passed against him. This contention was elaborately considered in point No. 1 in the impugned judgment and it was held that the detenu was not at Indian. No materials have been placed before us to prove that he was at Indian and, therefore, beyond the ken of the provisions of COFEPOSA Act. The order of detention was rightly passed and we find no reason to interfere with the impugned judgment.