Case: Adishwar Jain Vs. Union Of India

2. Appellant before us was detained under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short "COFEPOSA"). He is the Managing Director of a company, registered and incorporated under the provisions of the Companies Act, known as M/s. Sundesh Springs Private Limited. It was an exporter and held a valid licence therefor. The company was to export products of alloy steel. Upon exporting of alloy steel, it was entitled to credits under the Duty Entitlement Pass Book (DEPB) Scheme introduced by the Government of India with an object of encouraging exports. He allegedly misdeclared both the value and description of goods upon procuring fake and false bills through one Prabhjot Singh. The said Prabhjot Singh was said to have been operating three firms, viz. M/s. S.P. Industrial Corporation, M/s. Aaysons (India) and M/s. P.J. Sales Corporation, Ludhiana. It was allegedly found that non-alloy steel, bars, rods, etc. of value ranging from Rs. 15/- to Rs. 17/- per kg. were exported in the guise of alloy steel forgings, bars, rods, etc. by declaring their value thereof from Rs. 110/- to Rs. 150/- per kg. and the export proceeds over and above the actual price were being routed through Hawala Channel. The officers of the Directorate of Revenue Intelligence (DRI) searched the factory as well as the residential premises of Appellant and that of Prabhjot Singh. Various incriminating documents were recovered. Appellant and the said Prabhjot Singh made statements under Section 108 of the Customs Act. Prabhjot Singh allegedly admitted to have supplied fake bills to units owned and controlled by Appellant on commission basis without actual supply of the goods. It was also found that Appellant had declared goods exported as "alloy steel" whereas after the tests conducted by Central Revenue Control Laboratory, they were found to be "other than alloy steel", i.e., non-alloy. The Consul (Economic), Consulate General of India at Dubai allegedly confirmed the existence of a parallel set of export invoices. Invoices with a higher value were presented before the Indian Customs Authorities with a view to avail DEPB incentives but in fact invoices with a lower value were presented for clearance.3. On the aforementioned allegations, an order of detention was issued on 5.4.2005. Appellant moved for issuance of a writ of Habeas Corpus before the High Court of Judicature of Punjab and Haryana. The said writ petition was dismissed by an order dated 23.11.2005 by a learned Single Judge. A letters patent appeal, concededly which was not maintainable, was filed the reagainst which was dismissed by reason of the impugned judgment.

Reasoning: 28. We have been taken through the order of detention. The statements of Appellant and the said Prabhjot Singh were recorded therein in extenso. Recording of such statement must have been made from the xeroxed copies of such documents which were available with the detaining authority. The self-inculpatory statements of Appellant as also Prabhjot Singh purported to have been made in terms of Section 108 of the Customs Act were required to be considered before the order of detention could be passed. The same was not done. The original of such documents might not been available with the detaining authority but admittedly the xeroxed copies were. It has not been denied or disputed that even the xeroxed copies of the said documents had not been supplied to the detenue. It may be true that Appellant in his representation dated 14.06.2005 requested for showing him the original documents referred to or mentioned in the grounds of detention but then at least the xeroxed copies thereof should have been made available to him.What is, therefore, relevant was as to whether the documents were material. If the documents were material so as to enable the detenue to make an effective representation which is his constitutional as also statutory right, non-supply thereof would vitiate the order of detention.31. It is a trite law that all documents which are not material are not necessary to be supplied. What is necessary to be supplied is the relevant and the material documents, but, thus, all relevant documents must be supplied so as to enable the detenue to make an effective representation which is his fundamental right under Article 22(5) of the Constitution of India. Right to make an effective representation is also a statutory right. [See Sunila Jain v. Union of India and Another [(2006) 3 SCC 321] 32. In this case, the statements of Appellant and Prabhjot Singh, in our opinion, were material. They could not have been withheld. If original of the said documents were not available, xeroxed copies thereof could have been made available to him.33. The detaining authority moreover while relying on the said documents in one part of the order of detention could not have stated in another part that he was not relying thereupon. The very fact that he had referred to the said statements in extenso is itself a pointer to the fact that he had relied upon the said documents. Even in the earlier part of the impugned order of detention, i.e. detaining authority appears to have drawn his own conclusions.