Usha Agarwal vs Union Of India & Ors

J U D G M E N T (Arising out of Special Leave Petition (Crl.) No. 3012/2006) (With W.P. (Crl.) No. 191 of 2006 (D-14072/2006) R.V. RAVEENDRAN, J.

2. The facts, in brief, leading to the preventive detention of the detenu, as gathered from the grounds of detention, are as follows - Sandip Agarwal, the detenu, was the Director in-charge of the management of M/s Sandip Exports Ltd., the other Directors being his family members. On receipt of information about irregularities committed by the detenu, a search of the premises of Sandip Exports Ltd. was conducted by the Directorate of Revenue Intelligence on 7.11.2003. The search and the investigations disclosed that M/s. Sandip Exports Ltd. had obtained two Annual Advance Licences dated 28.3.2001 and 22.3.2002 on actual user conditions from the Director General of Foreign Trade, Kolkata, as manufacturer-exporter. The said Annual Advance Licences issued under the Duty Exemption Entitlement Certificate Scheme ('DEEC Scheme' for short) enabled the Licensee to import goods free of duty subject to the condition that the Licensee shall manufacture and export products (by utilizing the imported goods) within 18 months, the quantity and value being as specified in the licences in terms of Customs Notification No. 48/99 dated 29.4.1999 as amended from time to time. The detenu imported different types of polyester and silk yarn/fabric, duty free, under the scheme by using the said licences of Sandip Exports Ltd. The duty foregone on importations made under the said two Advance Licences was Rs.14 crores. Instead of utilizing such imported materials in the manufacture of products for exports, he diverted and disposed of the imported goods in the domestic market, and did not fulfil the export obligation. He falsely claimed that the goods for export were manufactured from out of the imported goods through a non-existing manufacturing unit, and through alleged job-workers; and he also falsely claimed that the products so manufactured out of goods imported by Sandip Exports Ltd. were exported through M/s Karan Exports (India) Ltd., another company owned and controlled by detenu's family. In this manner, the detenu indulged in a systematic and organized import-export fraud by importing goods duty-free, under the 'DEEC Scheme' and diverting them to domestic market.

4. The detention order could not be executed as the detenu absconded. As a consequence, an order dated 29.3.2004 was issued under Section 7(1) of the Act. On the basis of a situation report filed under Section 7(1)(a) of the Act on 26.10.2004, the Chief Metropolitan Magistrate, Calcutta, passed an order dated 18.11.2004 for proclamation by proceeding under Section 82 Cr.P.C. The detenu filed a writ petition challenging the order of detention. The said pre-execution challenge was rejected by the High Court on 10.6.2005. Ultimately, on 11.11.2005, the detenu was taken into custody and the detention order and the grounds in support of the detention were served on him. The copies of the documents relied upon by the detaining authority in making the order of detention, were furnished to the detenu on 14.11.2005. As the detenu claimed that he had no working knowledge of Hindi, English translations were furnished to him on 16.11.2005.

5. The detenu made a representation against his detention to the detaining authority on 25.11.2005. The said representation was rejected by the Detaining Authority on 7.12.2005 and the same was communicated to the detenu on 13.12.2005. On 14.12.2005, the detenu's mother filed W.P. No.23908/2005 in the High Court of Calcutta, seeking quashing of the detention order dated 19.8.2004 and release of the detenu.

6. The detenu made a representation to the Advisory Board constituted under the COFEPOSA Act on 16.1.2006. The Advisory Board gave a hearing on 19.1.2006 and recommended confirmation of the detention. On receiving a copy of the representation to the Advisory Board along with the report of the Advisory Board on 27.1.2006, the Central Government confirmed the detention on 1.2.2006. The representation dated 16.1.2006, copies of which were furnished to the detaining authority and Central Government, was also independently considered by them. The Detaining Authority by order dated 10.2.2006 rejected the representation of the detenu dated 16.1.2006. The Central Government (Special Secretary and Director General, Central Economic Intelligence Bureau) also rejected the said representation of the detenu by order dated 13.2.2006. These orders of rejection were served on the detenu on 17.2.2006. The detenu made another representation dated 7.2.2006 against his detention to the Central Government. By order dated 22.2.2006 the Central Government rejected the said representation and a copy thereof was served on the detenu on 18.3.2006.

7. The events subsequent to filing of the writ petition were placed on record in the pending writ petition and the order of detention was challenged on the following grounds :

d) Copies of the documents which were relied upon by the Detaining Authority furnished to the detenu, contained several sheets which were illegible thereby preventing the detenu from making an effective representation.

20. The grievance of the detenu is in respect of the representation to the 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 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 :-

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 examination 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)

19. The order of detention states that detenu can make representations to

23. As a result, we dismiss the appeal as also the writ petition as having no merit.