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Ashok Kumar v. Union Of India And Others
Factual and Procedural Background
The appellant was detained on 21 March 1987 under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) for allegedly dealing in foreign currency and smuggled gold. The detention was based, inter alia, on a 10 December 1986 search of three premises in Bharatpur. Grounds of detention were served on the same day as the arrest.
On 6 April 1987 the appellant submitted two representations—one to the Detaining Authority and another to the Central Government—asserting that key documents had not been supplied and disputing that one of the searched houses belonged to him. The requested documents (about 150 pages) were furnished on 24 April 1987. The Advisory Board heard the matter on 29 April 1987 and the Central Government confirmed the detention for one year on 7 May 1987.
The appellant’s writ petition challenging the detention was dismissed by the Delhi High Court on 9 October 1987. He obtained special leave to appeal to the Supreme Court, which heard arguments and rendered the present decision.
Legal Issues Presented
- Whether failure to supply, within the statutory period, documents considered by the Detaining Authority violated Article 22(5) of the Constitution and Section 3(3) of COFEPOSA, thereby vitiating the detention.
- Whether the alleged delay in disposal of the appellant’s representations additionally rendered the detention illegal (an issue noted but ultimately not decided).
Arguments of the Parties
Appellant’s Arguments
- Vital documents—three bank passbooks and a driving licence showing his true address—were relied upon by the Detaining Authority yet not supplied within 15 days, preventing an effective representation and violating Article 22(5).
- The disputed premises at Purana Laxman Mandir belong to his sister-in-law; the seized foreign currency and gold cannot therefore be linked to him.
- No effort was made by authorities to verify ownership of that house.
- The 23-day delay in considering his representation further invalidated the detention.
Respondents’ Arguments
- The Detaining Authority averred that although many documents were before him, only those listed as “relied upon” were considered; the remaining documents were irrelevant and need not have been supplied.
- The appellant and an associate were present during the search, and his later flight indicated that the Purana Laxman Mandir house was in fact his.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Smt Icchu Devi Choraria v. Union of India (1980) 4 SCC 531 | The right to receive, without undue delay, copies of all documents relied upon in the grounds of detention is integral to the constitutional right to make an effective representation under Article 22(5). | Relied upon to hold that documents must be supplied within five days, or in exceptional cases within fifteen days; failure renders detention illegal. |
| Kamla Kanahiyalal Khushalani v. State of Maharashtra (1981) 1 SCC 748 | Reaffirmed the mandatory nature of supplying relied-upon documents to the detenu. | Cited as consistent authority underscoring that non-compliance with Article 22(5) invalidates continued detention. |
Court's Reasoning and Analysis
The Supreme Court found it “crystal clear” that documents placed before the Detaining Authority were not furnished to the appellant within the fifteen-day limit prescribed by Section 3(3) of COFEPOSA. Although supplied on 24 April 1987, they arrived only five days before the Advisory Board hearing on 29 April 1987, effectively denying the appellant meaningful opportunity to prepare his representation.
Invoking Icchu Devi Choraria, the Court emphasized that timely supply of relied-upon materials is indispensable for compliance with Article 22(5). The Detaining Authority’s assertion that he did not “rely” on the withheld documents was rejected because those materials had in fact been placed before him and bore on his subjective satisfaction. Their late disclosure therefore breached the constitutional mandate.
Given this conclusion, the Court deemed it unnecessary to examine the alleged delay in disposal of the representation or other grounds of challenge.
Holding and Implications
Appeal Allowed; Detention Order Quashed. The judgment of the Delhi High Court was set aside and the government was directed to release the appellant forthwith.
Implications: The decision reinforces the strict obligation under Article 22(5) and Section 3(3) of COFEPOSA to provide, within the statutory period, all documents placed before and considered by the Detaining Authority. Non-compliance invalidates the detention, underscoring procedural safeguards in preventive-detention jurisprudence. No new legal test was created, but existing precedent was firmly applied.
B.C Ray, J.— Special leave granted. Arguments heard.
2. This appeal by special leave is directed against the judgment and order dated 9-10-1987 passed by the High Court of Delhi in Criminal Writ Petition No. 262 of 1987 discharging the rule and rejecting the writ petition.
3. The appellant was arrested and detained on 21-3-1987 from his residence at Dahiwali Gali, Karola Market, Naya Laxman Mandir, Bharatpur by an order of detention made under Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 with a view to prevent him from acting in any manner prejudicial to the augmentation of foreign currency and also with a view to prevent him from engaging and keeping smuggled gold. The appellant was served with the grounds of detention by the Detaining Authority. Shri Tarun Roy, Joint Secretary to the Government of India. It had been stated therein that the appellant may make any representation to the Advisory Board against his detention.
4. In the grounds of detention it was inter alia stated that on the basis of the secret information received in the office of the Assistant Director, Enforcement Directorate, Agra, the appellant had been indulging in illegal sale and purchase of foreign currency and also in the sale and purchase of gold of foreign origin on a large scale and that search of the following premises connected with the appellant was carried out on 10-12-1986 under Section 37 of the Foreign Exchange Regulation Act, 1973:
“(i) Premises situated in Purana Laxman Mandir opposite Dr Ram Kumar, Bharatpur.
(ii) Premises situated in Dahiwali Gali, Karola Market, Naya Laxman Mandir, Bharatpur, and
(iii) Business premises of M/s Madanlal, Mohanlal and Baldev Singh, Karola, Laxman Mandir Crossing, Near Bata Shop, Bharatpur.”
5. On 6-4-1987, the appellant made two representations: one to the Detaining Authority, Respondent 2 and another to the Central Government, Respondent 1. In the representation to the Detaining Authority, the appellant stated that he had no concern whatsoever as regards the residential premises situated at Purana Laxman Mandir, Opp. Dr Ram Kumar, Bharatpur where the search was conducted and on such search US dollars and primary gold were recovered, as the said premises does not belong to him but belongs to his sister-in-law. The appellant's residential premises is situated in Dahiwali Gali, Karola Market, Naya Laxman Mandir, Bharatpur. It had also been stated therein that the relevant documents on the basis of which the detaining authority came to the subjective satisfaction were not supplied to him and unless the said documents are given to him it will not be possible for him to make any effective representation against the grounds of detention. In the second representation to the Secretary, Government of India dated 6-4-1987 also the appellant while reiterating the same facts stated that even the house from where the alleged recovery of foreign currency and gold was made is not his residential premises but is the residence of his sister-in-law. The appellant also stated that he was innocent and he should be released forthwith by revoking the order of detention. The appellant also stated that the Detaining Authority supplied him the relevant documents and also the information asked for in his letter dated April 6-4-1987 only on 24-4-1987. The appellant also made a representation before the Advisory Board on 27-4-1987.
6. The appellant was produced before the Advisory Board on 29-4-1987 and the Advisory Board heard the appellant in respect of his representation. The appellant received a communication dated 7-5-1987 from Respondent 1 stating therein that his detention had been confirmed with effect from 21-3-1987 for a period of one year.
7. The appellant thereafter challenged the order of detention by a writ petition and also prayed for quashing of the said order of detention on the ground inter alia that the documents relied upon by the Detaining Authority in coming to his subjective satisfaction for making the order of detention in question which were required to be supplied to him along with the grounds of detention, were not supplied to him. The grounds of detention were supplied to him on 21-3-1987 whereas the vital documents were supplied to him as late as on 24-4-1987 in infringement of the provisions of Section 3(3) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act to be hereinafter called as “the said Act.” This vitiated the entire detention order inasmuch as the appellant could not make an effective representation against his order of detention in accordance with the mandatory provisions of Article 22(5) of the Constitution of India. The order of detention was also challenged on the ground that the order of confirmation of detention did not give any indication as to why the government had specified or determined the maximum period of detention of one year. The detention order is, therefore, illegal. It had also been stated in the writ petition that there had been inordinate delay in considering the representation sent on 6-4-1987 through the Superintendent of Jail to the Detaining Authority and the Central Government. The said representation was disposed of by the Central Government on 29-4-1987 and as such there was delay of 23 days which had not been explained. This unusual delay in the disposal of the detenu's representation renders the order of detention bad.
8. A counter-affidavit was filed on behalf of Respondents 1 and 2 affirmed by one Shri S.K Chaudhary. Under Secretary, Ministry of Finance, Department of Revenue. In para 4 of the said affidavit it was stated that “it is also pertinent to submit that at the time of search several personal documents of the petitioner like copy of driving licence, his and his wife's bank passbooks including a HUF passbook, account books were seized from the said premises”. It was also stated in para 7 of the said affidavit that the information sought in the representation of 6-4-1987 received in the office of the Detaining Authority on 15-4-1987 was totally irrelevant for the purpose of making any representation. In para 10 of the said affidavit it had been stated that the detenu was supplied with more documents numbering 150 pages on 24-4-1987 in pursuance of his representation dated 6-4-1987, although the same were not relied upon in forming the subjective satisfaction of the Detaining Authority. The Detaining Authority, Shri Tarun Roy, Joint Secretary to the Government of India, Department of Revenue, Ministry of Finance, New Delhi in paras 3 and 4 of his affidavit stated as under:
“3. ... That I was aware that no separate statement had been recorded by the custom authorities and as such there was no question of suppressing the same. The result of the seizure was also placed before me as given in the panchanama which were placed before me.
4. That although all the documents seized from the premises of the petitioner were before me but, I had not relied on all of those documents in forming my subjective satisfaction, I have relied only on those documents which are mentioned to be relied in the list of documents annexed with the grounds of detention.”
9. The learned Judge of the Delhi High Court while dismissing the writ petition observed that in view of the affidavit filed by the Detaining Authority, Respondent 2, that all the documents seized though placed before him, he did not rely on all of them in forming his subjective satisfaction in making the order of detention and as such the non-supply of those documents to the petitioner along with the grounds of detention, cannot be said to amount to infringement of the provisions of Article 22(5) of the Constitution rendering the order of detention illegal and bad.
10. Mr Soli J. Sorabji, learned counsel appearing on behalf of the detenu has submitted with much vehemence that non-supply of the vital documents which were considered by the Detaining Authority in forming his subjective satisfaction violated the provisions of Article 22(5) of the Constitution as the appellant was prevented from making effective representation to the grounds of detention. It has been submitted by the learned counsel that those documents which comprised of the 3 bank passbooks of the appellant and his wife and one driving licence of the appellant which had been seized and taken possession of by the Customs Department will clearly show that the residential address of the appellant mentioned therein is the house in Dahiwali Gali, Karola Market, Naya Laxman Mandir, Bharatpur and not in Purana Laxman Mandir, Opp. Dr Ram Kumar, Bharatpur which house does not belong to the appellant but to his sister-in-law. The foreign currency i.e US dollars as well as the primary gold which were found out on search from the house in Purana Laxman Mandir cannot be connected with the appellant as he had specifically stated in his representation that he is not the owner of the said house. It has also been submitted in this connection that in spite of the specific objection taken by the appellant in his representation, no attempt was made on behalf of the Detaining Authority to ascertain who is the owner of the said house. The non-supply of the said documents had greatly handicapped the appellant in making an effective representation against the grounds of detention served on him.
11. This submission of the learned Counsel was tried to be repelled by the Additional Solicitor General by contending that in view of the affidavit filed by the Detaining Authority, Shri Tarun Roy, Joint Secretary to the Government of India, Department of Revenue, Ministry of Finance, that he did not consider those documents though the same were placed before him in forming his subjective satisfaction in making the order of detention and so non-supply of those documents along with the grounds of detention to the appellant did not vitiate the order of detention. It was also submitted that the appellant and his relation, Manoj Kumar were present at the time of the search and the appellant subsequently fled away go to show that the house in Purana Laxman Mandir from where the foreign currency and primary gold were recovered belonged to the appellant.
12. After considering the submissions, it is crystal clear that the aforesaid documents though placed before the Detaining Authority for his consideration were not supplied to the appellant within 15 days from the date of the order of detention as provided under Section 3(3) of the said Act. It is also evident from the affidavit of Shri S.K Chaudhary, Under Secretary, Ministry of Finance, Department of Revenue, New Delhi that on the request of the appellant by his representation dated 6-4-1987. the documents were supplied to him on 24-4-1987. The representation of the appellant was disposed of by the Advisory Board on 29-4-1987. In these circumstances, it cannot be denied that the failure on the part of the Detaining Authority to supply the aforesaid material documents prevented the appellant from making an effective representation against the grounds of detention and as such the mandatory provisions of Article 22(5) have not been complied with. The order of detention in our considered opinion is, therefore, illegal and bad and the same is liable to be quashed. As the appeal succeeds on this ground alone we do not deem it necessary to consider the other objections raised against the order of detention.
13. It is pertinent to refer here to the decision of this Court in Smt Icchu Devi Choraria v. Union of India (1980) 4 SCC 531 wherein it has been held that the right to be supplied the copies of the documents, statements and other materials relied upon in the grounds of detention without any undue delay flows directly as a necessary corollary from the rights conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention, because unless the former right is available, the latter cannot be meaningfully exercised. It has been further held that it is necessary for the valid continuance of detention that subject to Article 22(6) copies of the documents, statements and other materials relied upon in the grounds of detention should be furnished to the detenu along with the grounds of detention or in any event not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention. There are no exceptions or qualifications provided to this rule and if this requirement of Article 22(5) read with Section 3(3) of COFEPOSA Act is not satisfied, the continued detention of the detenu would be illegal and void. Similar observations have been made in the case of Kamla Kanahiyalal Khushalani v. State of Maharashtra (1981) 1 SCC 748, (1981) 2 SCR 459, AIR 1981 SC 814.
14. For the reasons aforesaid, we allow the appeal and set aside the judgment and order of the High Court and quash the order of detention. We direct the government to release the appellant from jail forthwith. There will be no order as to costs.
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