Full Judgment Text
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2005:BHC-AS:2419-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1254 OF 2004
Ramesh Singh, )
an Indian Inhabitant, )
residing at C-45, Sector 4 Airoli, )
Navi Mumbai - 400 708. ).. Petitioner
(Friend of the Detenu)
Vs.
1. The State of Maharashtra, )
Through the Secretary to the )
Govt.of Maharashtra, )
Home Department, Mantralaya, )
Mumbai - 400 032. )
2. Neela Satyanarayan, )
The Principal Secretary )
(Appeals and SEcurity) to the )
Government of Maharashtra, )
Home Department and Detaining )
Authority, Mantralaya, )
Mumbai - 400 032. )
3. The Superintendent of Prison, )
The Mumbai Central Prison, )
Arthur Road, Mumbai. )
4. The Superintendent of Prison, )
Nasik Road Central Prison, )
Nasik. )..Respondents
--
Shri Maqsood Khan for the petitioner.
Shri D.S.Mhaispurkar, APP for the respondents.
--
CORAM : R.M.S.KHANDEPARKAR &
P.V.KAKADE, JJ.
DATED : 10th February, 2005.
ORAL JUDGMENT : ( Per R.M.S.Khandeparkar, J ) ORAL JUDGMENT : ( Per R.M.S.Khandeparkar, J ) ORAL JUDGMENT : ( Per R.M.S.Khandeparkar, J )
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1. The petitioner challenges the order of
detention dated 3rd October, 2003 issued under Section
3(1) of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, hereinafter
referred to as "COFEPOSA".
2. The order of detention was issued on 3rd
October, 2003 and was served on 8th May, 2004. The
Advisory Board’s meeting was held on 11th June, 2004.
The present petition was filed on 28th June, 2004.
Meanwhile, the detention order of the same date issued
against the co-detenu by name Rajendra Tripathi was
revoked on 4th December, 2003 pursuant to the
representation made by the said co-detenu through his
lawyer on 27th November, 2003.
3. The petitioner challenges the detention order
on four grounds. Firstly, consequent to the
revocation of the detention order against the
co-detenu whose role, as revealed from the grounds in
support of the order, being disclosed as constituting
the activities of abating the smuggling of the goods,
which is not different from the one disclosed in
relation to the detenu in this case, the detention
order against the detenu therefore stands vitiated.
Secondly, the State Government was under the
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obligation to forward the order of revocation of the
co-detenu along with the representation made by him to
the Advisory Board before consideration of the case of
the detenu by the Advisory Board, as having failed to
do so, the continued detention of the detenu is bad in
law. Thirdly, in spite of the repeated requests for
copies of the representation by the co-detenu Rajendra
Tripathi and order of revocation of his detention, the
same have not been supplied to the detenu and thereby
the detenu has been denied of fair opportunity to make
effective representation in exercise of his right
assured under Article 22(5) of the Constitution of
India. Fourthly that the decision on the
consideration of the representation by the petitioner
to the State Government has not been communicated to
the detenu. Though the challenge to the impugned
order is on the four grounds, it is not necessary to
deal with all the four grounds and suffice to refer to
only one ground which relates to the failure on the
part of the respondents to place before the Advisory
Board, the copy of the representation by the co-detenu
and that of the order of revocation of his detention
before consideration of the case of the detenu by the
Advisory Board.
4. While elaborating the contention in relation
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to the grounds of challenge under consideration, the
learned Advocate appearing for the petitioner
submitted that the order of detention which was issued
against the co-detenu Rajendra Tripathi having been
revoked on 4th December, 2003 pursuant to the
representation made by him through his Advocate, it
was incumbent upon the State Government and the
detaining authority to place before the Advisory board
the revocation order of the co-detenu Rajendra
Tripathi along with the reasons recorded by the State
Government for revocation of the order of detention of
the co-detenu Rajendra Tripathi so as to enable the
Advisory Board to consider the case of the petitioner
in proper perspective before giving its opinion in the
matter as regards the detention of the detenu. It was
his further contention that the detenu had neither
knowledge nor opportunity to have the representation
of the co-detenu being made available on record,
alongwith the order of revocation of the order of
detention against the said co-detenu by the
respondents and the grounds on which the said order of
revocation was passed, and therefore, it was
absolutely necessary for the respondents to take
appropriate steps to make all those documents
available before the Advisory Board on or before 6th
June, 2004 when the Advisory Board had met to consider
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the case in relation to the detention of the present
detenu. Having not done so, the respondents have
denied the fair opportunity to the detenu to make
effective representation against his detention, and it
is more so in view of the failure on the part of the
respondents to forward copies of the grounds on which
the order of detention of the co-detenu has been
revoked to the petitioner inspite of the fact that the
grounds in support of the orders passed against both
the detenus disclosed not only similar role being
played by both of them but also the alleged acts of
abatement of smuggling having been done in connivance
with each other and further that the activities of the
present detenu having been disclosed either at the
instance of or under the instructions from the other
co-detenus including Rajendra Tripathi.
5. The learned APP, on the other hand, has
submitted that considering the role of the detenu that
he was the Proprietor of M/s. United Export India
Limited and about his involvement in the earlier
activities and about the likelihood of his indulging
in similar activities in future, mere revocation of
the order of detention against the co-detenu will not
enure to the benefit of the present detenu, and
therefore, non production of such documents before the
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Advisory Board would not be fatal nor it would amount
to denial of an opportunity to the detenu to make
effective representation in exercise of his right
under Article 22(5) of the Constitution of India. It
is his contention that the documents in question were
not material for the purpose of consideration of the
case of the detenu by the Advisory Board and being so,
it was not necessary to produce those documents before
the Advisory Board in its meeting in relation to the
petitioner’s case. In any case, it is the contention
of the learned APP that nothing prevented the detenu
from bringing the fact about the revocation of the
order of detention against the co-detenu to the notice
of the Advisory Board at the time he was heard before
it, and failure in that regard cannot enure to the
benefit of the detenu to contend that his continued
detention to be illegal. It is the contention on
behalf of the respondents that the activities by the
detenu, apart from his activities in connivance with
each other, the present detenu disclosed his active
participation in abating the smuggling by allowing the
name of his company to be used for fraudulent exports.
Reliance is also placed by the learned APP in the
decision of the Division Bench of this Court in the
matter of Kirti Kumar Narulla v. State of Maharashtra Kirti Kumar Narulla v. State of Maharashtra Kirti Kumar Narulla v. State of Maharashtra
& Ors., & Ors., reported in 2004(3)Mh.L.J. 505 to contend & Ors.,
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that it was not obligatory upon the respondents to
furnish copies of the order of revocation of detention
of the co-detenu and the grounds in support thereto to
the detenu.
6. Perusal of the order of detention and the
grounds in support of the order disclose that the
detaining authority had arrived at the satisfaction
about the likelihood of the detenu indulging in
abatement of smuggling of the goods, on the basis of
the materials which disclosed that the exports were
being made in the name of the companies like Sudha
Fashions, Surya Jaipur Rugs, Sterling Enterprises,
United Exports and were being stage managed by Ramji
Mishra and the arrangements for the exports were made
by the detenu along with Subhash Dubey and Rajendra
Tripathi. In fact the detenu had allowed the use of
his company M/s.United Exports for monetary
consideration to Ramji Mishra with full knowledge of
what was being attempted to be exported in the name of
the detenu’s firm and that undue benefits would flow
from the Government Exchequer to the syndicate which
included the detenu as well as Rajendra Tripathi. The
fact that the goods and their packing pertaining to
the so-called different exporters were similar in
nature and that the goods the exporters had stuffed
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together in a container could not be segregated,
established the fact that the fraudulent exports in
respect of the said firms were perpetrated by the
persons of a common syndicate. These findings by the
detaining authority obviously disclose that the detenu
along with Subhash Dubey, Rajendra Tripathi and Ramji
Mishra, forming a common syndicate, were involved in
the alleged activities of fraudulent exports.
Undoubtedly, the detenu had allowed the use of his
company M/s.United Exports for the purpose of such
exports for monetary consideration. At the same time,
however, the grounds also disclose that the
documentations in relation to such exports were
prepared and signed by the detenu as per the
instructions of Subhash Dubey and the said Rajendra
Tripathi. The grounds also disclose that the detenu
had been doing the clearing business in the same
manner like Tripathi. The grounds also disclose that
Tripathi was to benefit certain percentage of drawback
amount along with Subhash Dubey so also the detenu for
allowing his company’s name for the purpose of
exports. The grounds apparently disclose that the
alleged activities were in the nature of exporting the
goods by inflating the prices and thereby enjoying
high drawback facilities defrauding the public
exchequer to that extent, and these activities were
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carried out by all these persons viz. the detenu,
Rajendra Tripathi, Subhash Dubey, Ramji Mishra, etc.
being the members of a syndicate. Though some of the
acts have been shown to be attributable independently
to each of the persons of the syndicate, at the same
time, those acts were found to be a forming part of
activities for availing drawback facility by illegal
method and means. Being so, the contention that the
role of the detenu is totally independent of the role
of Rajendra Tripathi, co-detenu, and that therefore,
revocation of the order of detention of the co-detenu
Rajendra Tripathi cannot enure to the benefit of the
detenu is totally devoid of substance. The said
argument on behalf of the respondents does not find
any support from the grounds for issuance of order of
detention against both the detenus. In view of the
revocation of the order of detention of the co-detenu,
the explanation for the continued detention of the
detenu is thoroughly unconvincing. Apart from
contending that the role of the detenu would not
warrant similar treatment as given to his co-detenu,
the respondents have not disclosed the reasons for
revocation of the order of detention of the co-detenu.
It is further pertinent to note that the order of
detention issued against Rajendra Tripathi was revoked
on 4th December, 2003 much prior to the date of giving
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effect to the order of detention issued against the
detenu who was taken into custody only on 8th May,
2004, pursuant to the order dated 3rd October, 2003.
Undoubtedly, the contention is that the detenu was
absconding for the said period, that is totally a
different issue. But the fact remains that on the day
when the order against the detenu was given effect to,
the order of detention issued against the co-detenu
had already been revoked.
7. It is undisputed fact that the detenu had
requested for the copies of the representation made by
the detenu and the order passed thereon including the
reasons for revocation of the order of detention
against the co-detenu, however, the same have not been
furnished to the detenu. Whether the detenu, as a
matter of right, was entitled to the copies or not is
a different issue which is not relevant for the
decision in the present case. The fact remains that
the detenu was not in possession of those documents at
the time when his case was taken up for consideration
by the Advisory Board on 11th June, 2004. At the same
time, those documents were certainly available with
the respondents. Considering the fact that the role
of the present detenu was not totally an independent
of the role played by the said co-detenu Rajendra
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Tripathi in the activities of abetting the smuggling,
as revealed from the grounds of detention order, and
that the activities of the detenu were, as a member of
the syndicate to which the co-detenu Tripathi also
belonged, the learned Advocate for the petitioner is
justified in contending that it was absolutely
necessary for the respondents to place those documents
before the Advisory Board at the time when the case of
the detenu was considered.
8. Section 8 of COFEPOSA deals with the subject
of Advisory Board, its meeting and its report, and in
particular, clause (c) thereof provides that the
Advisory Board to which a reference is made under
clause (b) shall after considering the reference and
the materials placed before it and after calling for
such further information as it may deem necessary from
the appropriate Government or from any person
concerned, and if, in any particular case, it
considers it essential so to do or if the person
concerned desires to be heard in person, after hearing
him in person, prepare its report specifying in a
separate paragraph thereof its opinion as to whether
or not there is sufficient cause for the detention of
the person concerned and submit its report. This
provision obviously discloses that the concerned
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authority have to place before the Advisory Board all
the relevant materials in relation to the case of the
detenu under consideration before the Advisory Board
and that the Advisory Board is fully empowered to call
for further information if it deems necessary. Once
it is not in dispute that the detenu was not in
possession of the documents relating to the
representation by the co-detenu, the order of
revocation of the detention of the co-detenu and the
reasons for such revocation, and in the facts stated
above, it was but obvious that those documents were
material for consideration of the case of the detenu
and the same were required to be placed before the
Advisory Board. Once it is apparent from the grounds
that Rajendra Tripathi, co-detenu, and the detenu had
conducted their activities, as forming members of the
same syndicate, irrespective of the independent
additional activities carried out by each of them,
certainly the reasons for revocation of the order of
detention of the co-detenu Rajendra Tripathi were
relevant for consideration by a Board. Undoubtedly,
the powers of the Advisory Board are in the form of
review of the order passed by the detaining authority.
Being so, the Advisory Board is independently entitled
to re-assess all the materials considered by the
detaining authority as well as which might have come
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into existence even thereafter and being relevant for
consideration as to whether the continued detention to
be valid and/or necessary. Any failure on the part of
the respondents to bring such material documents
before the Advisory Board would virtually amount to a
denial of fair opportunity to the detenu to have his
case considered by the Advisory Board in a fair and
just manner, and on appreciation of all the materials
in proper perspective by the Advisory Board. The said
failure would result in denial of right to the detenu
which is otherwise assured to him under Article 22(5)
of the Constitution of India.
9. The decision of Division Bench in Kirti Kumar Kirti Kumar Kirti Kumar
Narulla’s case (supra) Narulla’s case (supra) is to the effect that the Narulla’s case (supra)
detaining authority has no obligation to furnish
copies to the detenu in relation to the documents
placed before the Advisory Board while dealing with
the scope of Article 22(5) of the Constitution of
India. That does not lead to conclusion that the
authority will be entitled to withhold the documents
from the Advisory Board irrespective of the fact that
such documents are relevant and material for the
purpose of consideration of the case of the detenu by
the Advisory Board. A document which discloses the
reasons for revocation of the order of detention of
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the co-detenu, who was apparently ordered to be
detained on the ground that he was a member of
syndicate to which the detenu also belonged, it can
hardly be said that such a document is irrelevant or
immaterial for the purpose of consideration of the
case of the detenu by the Advisory Board. Hence, the
decision in Kirti Kumar Narualla’s case (supra) Kirti Kumar Narualla’s case (supra) is of
Kirti Kumar Narualla’s case (supra)
no assistance to the respondents to justify their
action regarding failure on their part to place the
said documents before the Advisory Board.
10. For the reasons stated above, therefore, the
opinion given by the Advisory Board would stand
vitiated on account of failure on the part of the
respondents to place before it the relevant documents
at the time of consideration of the case of the
present detenu, and on that count itself, the
continued detention of the detenu would be illegal.
11. Considering the view that we are taking in
relation to the ground regarding failure on the part
of the respondents to place the relevant documents
before the Advisory Board, it is not necessary to deal
with the other grounds of challenge raised by the
petitioner in the case in hand.
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12. In the result, the Petition succeeds. The
continued detention of the detenu Dilip Kumar Mandal
is held to be illegal. The Respondents are directed
to release the detenu Shri Dilip Kumar Mandal
forthwith unless required in any other matter. The
rule is made absolute accordingly with no order as to
costs.
( R.M.S.Khandeparkar, J )
( P.V.Kakade, J )
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2005:BHC-AS:2419-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1254 OF 2004
Ramesh Singh, )
an Indian Inhabitant, )
residing at C-45, Sector 4 Airoli, )
Navi Mumbai - 400 708. ).. Petitioner
(Friend of the Detenu)
Vs.
1. The State of Maharashtra, )
Through the Secretary to the )
Govt.of Maharashtra, )
Home Department, Mantralaya, )
Mumbai - 400 032. )
2. Neela Satyanarayan, )
The Principal Secretary )
(Appeals and SEcurity) to the )
Government of Maharashtra, )
Home Department and Detaining )
Authority, Mantralaya, )
Mumbai - 400 032. )
3. The Superintendent of Prison, )
The Mumbai Central Prison, )
Arthur Road, Mumbai. )
4. The Superintendent of Prison, )
Nasik Road Central Prison, )
Nasik. )..Respondents
--
Shri Maqsood Khan for the petitioner.
Shri D.S.Mhaispurkar, APP for the respondents.
--
CORAM : R.M.S.KHANDEPARKAR &
P.V.KAKADE, JJ.
DATED : 10th February, 2005.
ORAL JUDGMENT : ( Per R.M.S.Khandeparkar, J ) ORAL JUDGMENT : ( Per R.M.S.Khandeparkar, J ) ORAL JUDGMENT : ( Per R.M.S.Khandeparkar, J )
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1. The petitioner challenges the order of
detention dated 3rd October, 2003 issued under Section
3(1) of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, hereinafter
referred to as "COFEPOSA".
2. The order of detention was issued on 3rd
October, 2003 and was served on 8th May, 2004. The
Advisory Board’s meeting was held on 11th June, 2004.
The present petition was filed on 28th June, 2004.
Meanwhile, the detention order of the same date issued
against the co-detenu by name Rajendra Tripathi was
revoked on 4th December, 2003 pursuant to the
representation made by the said co-detenu through his
lawyer on 27th November, 2003.
3. The petitioner challenges the detention order
on four grounds. Firstly, consequent to the
revocation of the detention order against the
co-detenu whose role, as revealed from the grounds in
support of the order, being disclosed as constituting
the activities of abating the smuggling of the goods,
which is not different from the one disclosed in
relation to the detenu in this case, the detention
order against the detenu therefore stands vitiated.
Secondly, the State Government was under the
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obligation to forward the order of revocation of the
co-detenu along with the representation made by him to
the Advisory Board before consideration of the case of
the detenu by the Advisory Board, as having failed to
do so, the continued detention of the detenu is bad in
law. Thirdly, in spite of the repeated requests for
copies of the representation by the co-detenu Rajendra
Tripathi and order of revocation of his detention, the
same have not been supplied to the detenu and thereby
the detenu has been denied of fair opportunity to make
effective representation in exercise of his right
assured under Article 22(5) of the Constitution of
India. Fourthly that the decision on the
consideration of the representation by the petitioner
to the State Government has not been communicated to
the detenu. Though the challenge to the impugned
order is on the four grounds, it is not necessary to
deal with all the four grounds and suffice to refer to
only one ground which relates to the failure on the
part of the respondents to place before the Advisory
Board, the copy of the representation by the co-detenu
and that of the order of revocation of his detention
before consideration of the case of the detenu by the
Advisory Board.
4. While elaborating the contention in relation
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to the grounds of challenge under consideration, the
learned Advocate appearing for the petitioner
submitted that the order of detention which was issued
against the co-detenu Rajendra Tripathi having been
revoked on 4th December, 2003 pursuant to the
representation made by him through his Advocate, it
was incumbent upon the State Government and the
detaining authority to place before the Advisory board
the revocation order of the co-detenu Rajendra
Tripathi along with the reasons recorded by the State
Government for revocation of the order of detention of
the co-detenu Rajendra Tripathi so as to enable the
Advisory Board to consider the case of the petitioner
in proper perspective before giving its opinion in the
matter as regards the detention of the detenu. It was
his further contention that the detenu had neither
knowledge nor opportunity to have the representation
of the co-detenu being made available on record,
alongwith the order of revocation of the order of
detention against the said co-detenu by the
respondents and the grounds on which the said order of
revocation was passed, and therefore, it was
absolutely necessary for the respondents to take
appropriate steps to make all those documents
available before the Advisory Board on or before 6th
June, 2004 when the Advisory Board had met to consider
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the case in relation to the detention of the present
detenu. Having not done so, the respondents have
denied the fair opportunity to the detenu to make
effective representation against his detention, and it
is more so in view of the failure on the part of the
respondents to forward copies of the grounds on which
the order of detention of the co-detenu has been
revoked to the petitioner inspite of the fact that the
grounds in support of the orders passed against both
the detenus disclosed not only similar role being
played by both of them but also the alleged acts of
abatement of smuggling having been done in connivance
with each other and further that the activities of the
present detenu having been disclosed either at the
instance of or under the instructions from the other
co-detenus including Rajendra Tripathi.
5. The learned APP, on the other hand, has
submitted that considering the role of the detenu that
he was the Proprietor of M/s. United Export India
Limited and about his involvement in the earlier
activities and about the likelihood of his indulging
in similar activities in future, mere revocation of
the order of detention against the co-detenu will not
enure to the benefit of the present detenu, and
therefore, non production of such documents before the
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Advisory Board would not be fatal nor it would amount
to denial of an opportunity to the detenu to make
effective representation in exercise of his right
under Article 22(5) of the Constitution of India. It
is his contention that the documents in question were
not material for the purpose of consideration of the
case of the detenu by the Advisory Board and being so,
it was not necessary to produce those documents before
the Advisory Board in its meeting in relation to the
petitioner’s case. In any case, it is the contention
of the learned APP that nothing prevented the detenu
from bringing the fact about the revocation of the
order of detention against the co-detenu to the notice
of the Advisory Board at the time he was heard before
it, and failure in that regard cannot enure to the
benefit of the detenu to contend that his continued
detention to be illegal. It is the contention on
behalf of the respondents that the activities by the
detenu, apart from his activities in connivance with
each other, the present detenu disclosed his active
participation in abating the smuggling by allowing the
name of his company to be used for fraudulent exports.
Reliance is also placed by the learned APP in the
decision of the Division Bench of this Court in the
matter of Kirti Kumar Narulla v. State of Maharashtra Kirti Kumar Narulla v. State of Maharashtra Kirti Kumar Narulla v. State of Maharashtra
& Ors., & Ors., reported in 2004(3)Mh.L.J. 505 to contend & Ors.,
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that it was not obligatory upon the respondents to
furnish copies of the order of revocation of detention
of the co-detenu and the grounds in support thereto to
the detenu.
6. Perusal of the order of detention and the
grounds in support of the order disclose that the
detaining authority had arrived at the satisfaction
about the likelihood of the detenu indulging in
abatement of smuggling of the goods, on the basis of
the materials which disclosed that the exports were
being made in the name of the companies like Sudha
Fashions, Surya Jaipur Rugs, Sterling Enterprises,
United Exports and were being stage managed by Ramji
Mishra and the arrangements for the exports were made
by the detenu along with Subhash Dubey and Rajendra
Tripathi. In fact the detenu had allowed the use of
his company M/s.United Exports for monetary
consideration to Ramji Mishra with full knowledge of
what was being attempted to be exported in the name of
the detenu’s firm and that undue benefits would flow
from the Government Exchequer to the syndicate which
included the detenu as well as Rajendra Tripathi. The
fact that the goods and their packing pertaining to
the so-called different exporters were similar in
nature and that the goods the exporters had stuffed
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together in a container could not be segregated,
established the fact that the fraudulent exports in
respect of the said firms were perpetrated by the
persons of a common syndicate. These findings by the
detaining authority obviously disclose that the detenu
along with Subhash Dubey, Rajendra Tripathi and Ramji
Mishra, forming a common syndicate, were involved in
the alleged activities of fraudulent exports.
Undoubtedly, the detenu had allowed the use of his
company M/s.United Exports for the purpose of such
exports for monetary consideration. At the same time,
however, the grounds also disclose that the
documentations in relation to such exports were
prepared and signed by the detenu as per the
instructions of Subhash Dubey and the said Rajendra
Tripathi. The grounds also disclose that the detenu
had been doing the clearing business in the same
manner like Tripathi. The grounds also disclose that
Tripathi was to benefit certain percentage of drawback
amount along with Subhash Dubey so also the detenu for
allowing his company’s name for the purpose of
exports. The grounds apparently disclose that the
alleged activities were in the nature of exporting the
goods by inflating the prices and thereby enjoying
high drawback facilities defrauding the public
exchequer to that extent, and these activities were
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carried out by all these persons viz. the detenu,
Rajendra Tripathi, Subhash Dubey, Ramji Mishra, etc.
being the members of a syndicate. Though some of the
acts have been shown to be attributable independently
to each of the persons of the syndicate, at the same
time, those acts were found to be a forming part of
activities for availing drawback facility by illegal
method and means. Being so, the contention that the
role of the detenu is totally independent of the role
of Rajendra Tripathi, co-detenu, and that therefore,
revocation of the order of detention of the co-detenu
Rajendra Tripathi cannot enure to the benefit of the
detenu is totally devoid of substance. The said
argument on behalf of the respondents does not find
any support from the grounds for issuance of order of
detention against both the detenus. In view of the
revocation of the order of detention of the co-detenu,
the explanation for the continued detention of the
detenu is thoroughly unconvincing. Apart from
contending that the role of the detenu would not
warrant similar treatment as given to his co-detenu,
the respondents have not disclosed the reasons for
revocation of the order of detention of the co-detenu.
It is further pertinent to note that the order of
detention issued against Rajendra Tripathi was revoked
on 4th December, 2003 much prior to the date of giving
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effect to the order of detention issued against the
detenu who was taken into custody only on 8th May,
2004, pursuant to the order dated 3rd October, 2003.
Undoubtedly, the contention is that the detenu was
absconding for the said period, that is totally a
different issue. But the fact remains that on the day
when the order against the detenu was given effect to,
the order of detention issued against the co-detenu
had already been revoked.
7. It is undisputed fact that the detenu had
requested for the copies of the representation made by
the detenu and the order passed thereon including the
reasons for revocation of the order of detention
against the co-detenu, however, the same have not been
furnished to the detenu. Whether the detenu, as a
matter of right, was entitled to the copies or not is
a different issue which is not relevant for the
decision in the present case. The fact remains that
the detenu was not in possession of those documents at
the time when his case was taken up for consideration
by the Advisory Board on 11th June, 2004. At the same
time, those documents were certainly available with
the respondents. Considering the fact that the role
of the present detenu was not totally an independent
of the role played by the said co-detenu Rajendra
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Tripathi in the activities of abetting the smuggling,
as revealed from the grounds of detention order, and
that the activities of the detenu were, as a member of
the syndicate to which the co-detenu Tripathi also
belonged, the learned Advocate for the petitioner is
justified in contending that it was absolutely
necessary for the respondents to place those documents
before the Advisory Board at the time when the case of
the detenu was considered.
8. Section 8 of COFEPOSA deals with the subject
of Advisory Board, its meeting and its report, and in
particular, clause (c) thereof provides that the
Advisory Board to which a reference is made under
clause (b) shall after considering the reference and
the materials placed before it and after calling for
such further information as it may deem necessary from
the appropriate Government or from any person
concerned, and if, in any particular case, it
considers it essential so to do or if the person
concerned desires to be heard in person, after hearing
him in person, prepare its report specifying in a
separate paragraph thereof its opinion as to whether
or not there is sufficient cause for the detention of
the person concerned and submit its report. This
provision obviously discloses that the concerned
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authority have to place before the Advisory Board all
the relevant materials in relation to the case of the
detenu under consideration before the Advisory Board
and that the Advisory Board is fully empowered to call
for further information if it deems necessary. Once
it is not in dispute that the detenu was not in
possession of the documents relating to the
representation by the co-detenu, the order of
revocation of the detention of the co-detenu and the
reasons for such revocation, and in the facts stated
above, it was but obvious that those documents were
material for consideration of the case of the detenu
and the same were required to be placed before the
Advisory Board. Once it is apparent from the grounds
that Rajendra Tripathi, co-detenu, and the detenu had
conducted their activities, as forming members of the
same syndicate, irrespective of the independent
additional activities carried out by each of them,
certainly the reasons for revocation of the order of
detention of the co-detenu Rajendra Tripathi were
relevant for consideration by a Board. Undoubtedly,
the powers of the Advisory Board are in the form of
review of the order passed by the detaining authority.
Being so, the Advisory Board is independently entitled
to re-assess all the materials considered by the
detaining authority as well as which might have come
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into existence even thereafter and being relevant for
consideration as to whether the continued detention to
be valid and/or necessary. Any failure on the part of
the respondents to bring such material documents
before the Advisory Board would virtually amount to a
denial of fair opportunity to the detenu to have his
case considered by the Advisory Board in a fair and
just manner, and on appreciation of all the materials
in proper perspective by the Advisory Board. The said
failure would result in denial of right to the detenu
which is otherwise assured to him under Article 22(5)
of the Constitution of India.
9. The decision of Division Bench in Kirti Kumar Kirti Kumar Kirti Kumar
Narulla’s case (supra) Narulla’s case (supra) is to the effect that the Narulla’s case (supra)
detaining authority has no obligation to furnish
copies to the detenu in relation to the documents
placed before the Advisory Board while dealing with
the scope of Article 22(5) of the Constitution of
India. That does not lead to conclusion that the
authority will be entitled to withhold the documents
from the Advisory Board irrespective of the fact that
such documents are relevant and material for the
purpose of consideration of the case of the detenu by
the Advisory Board. A document which discloses the
reasons for revocation of the order of detention of
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the co-detenu, who was apparently ordered to be
detained on the ground that he was a member of
syndicate to which the detenu also belonged, it can
hardly be said that such a document is irrelevant or
immaterial for the purpose of consideration of the
case of the detenu by the Advisory Board. Hence, the
decision in Kirti Kumar Narualla’s case (supra) Kirti Kumar Narualla’s case (supra) is of
Kirti Kumar Narualla’s case (supra)
no assistance to the respondents to justify their
action regarding failure on their part to place the
said documents before the Advisory Board.
10. For the reasons stated above, therefore, the
opinion given by the Advisory Board would stand
vitiated on account of failure on the part of the
respondents to place before it the relevant documents
at the time of consideration of the case of the
present detenu, and on that count itself, the
continued detention of the detenu would be illegal.
11. Considering the view that we are taking in
relation to the ground regarding failure on the part
of the respondents to place the relevant documents
before the Advisory Board, it is not necessary to deal
with the other grounds of challenge raised by the
petitioner in the case in hand.
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12. In the result, the Petition succeeds. The
continued detention of the detenu Dilip Kumar Mandal
is held to be illegal. The Respondents are directed
to release the detenu Shri Dilip Kumar Mandal
forthwith unless required in any other matter. The
rule is made absolute accordingly with no order as to
costs.
( R.M.S.Khandeparkar, J )
( P.V.Kakade, J )
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