Holding

The order of detention is illegal and void because the mandatory requirement of supplying the material documents within fifteen days under Article 22(5) read with Section 3(3) of the COFEPOSA Act was not complied with.

Summary

Ashok Kumar was detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 on allegations of illegal foreign‑currency and gold transactions. The grounds of detention were served on 21 March 1987, but the material documents on which the Detaining Authority relied were not supplied to the detainee until 24 April 1987, exceeding the 15‑day period mandated by Section 3(3) of the Act and Article 22(5) of the Constitution. The detainee’s representations made on 6 April were disposed of only on 29 April, and the detention was confirmed on 7 May. The Delhi High Court dismissed the writ petition, holding that the undisclosed documents were not relied upon and therefore the non‑supply did not violate Article 22(5). The Supreme Court allowed the appeal, ruling that the failure to furnish the documents within the statutory period denied the detainee an effective representation, violating Article 22(5) read with Section 3(3) and rendering the detention order illegal and void. Consequently, the detention order was quashed and the appellant was ordered to be released.

Issues considered

Whether the failure to supply the documents relied upon by the Detaining Authority within fifteen days of the detention order violates Article 22(5) of the Constitution and Section 3(3) of the COFEPOSA Act.
Whether such a violation makes the order of detention illegal and void.
Whether the delay in disposing the detainee’s representation affects the validity of the detention.
Whether documents not relied upon by the Detaining Authority can be excluded from the requirement of disclosure.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 3(1), s. 3(3)
Constitution of Indias. Article 22(5), s. Article 22(6)
Foreign Exchange Regulation Act, 1973s. 33, s. 37

Subjects

detentionArticle 22(5)COFEPOSAforeign exchange smugglingeffective representationprocedural fairnessconstitutional lawwrit petitionquashing order

Judgment

A ASHOK KUMAR
V.
UNION OF INDIA & ORS.
r
JANUARY 27, 1988

B [G.L. OZA AND B.C. RAY, JJ.]

Constitution of India, 1950, Articles 22(5) and (6).
~

C
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974. Section 3. Detention Order-Certain documents
though placed before the Detaining Authority for consideration not
supplied to detenu-Effective representation could not be submitted by )
r'
~

- '

detenu-Detention order-Quashed.
~-
The appellant was arrested and detained on 2 lst March, 1987
pursuant lo an order of detention made under s. 3(1) of the Conserva-
D lion of Foreign Exchange and Prevention of Smuggling Activities Act,
1974. He was served with the grounds of detention by the Detaining
Authority. In the grounds it was stated that 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
in three premises connected with the appellant search was carried out
E on lOth December, 1986 under s. 33 of the Foreign Exchange Regula-
tion Act, 1973.

On 61h April, 1987 the appellant made two representations; one to
the Detaining Authority-the second respondent, and another to the
..
F Central Government-the first respondent. In these representations the
appellant stated that he had no concern whatsoever as regards the~ ·
premises where search was carried out, and US $ and primary gold
were recovered as the said premises did not belong to him hut belonged
4
to his sister-in-law, and that if the relevant documents on the basis of
which the detaining authority came to its subjective satisfaction are not
G given it would not he possible to make any effective representation. On
2nd April, 1987 the appellant also made a representation before the
Advisory Board.

The appellant was produced before the Advisory Board on 29th
April, 1987 and the Board heard the appellant in respect of his re-
H . presentation. He received a communication dated 7th May, 1987 from
800
ASHOK KUMAR v. U.0.1. 801

respondent No. l stating that his detention had been confirmed with A
effect from 2 lst March, 1987 for a period of one year.

The appellant challenged the order of detention in a writ petition
and also prayed for quashing of the said order. It was contended on his
behalf: (1) that the grounds of detention were supplied on 2lst March,
B
1987 whereas the vital docu~ents were supplied as late as on 24th
April, 1987 and that this was a clear infringement of the provisions of
s. 3(3) of the COFEPOSA Act. (2) That the appellant could not make an
effective representation against the order of detention in accordance

-- with the mandatory provisio11s of Article 22(5) of the Constitutioq 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 c
why the Government had specified or determined the maximum period
of detention of one year, tha! there had been an inordinate delay in
considering the representation dated 6th April, 1987, that it was dis-
posed of by the Central Government on 29th April, 1987, and that this
delay of 23 days had not been satisfactorily explained. This unusual D
delay in the disposal of the representation also rendered the order of
detention bad.

The writ was contested by the first and second respondents by
submitting in their counter affidavits that at the time of the search of
the premises several personal documents of the detenu like driving
E
licence, his and his wife's bank passbooks, HUF passbooks, account
books were seized from the searched premises, and that in pursuance of
'
---,
his representation dated 6th April, 1987 the detenu was supplied with
more documents numbering 150 pages on 24th April, 1987 although the
same had not been relied upon in forming the subjective satisfaction of
.,..the Detaining Authority.
F

f The High Court dismissed the writ petition in view of the affidavit
filed by the Detaining Authority-Respondent No. 2 that all the docu-
ments seized though placed bel"ore the detaining authority he did not
rely on them in forming his subjective satisfaction in making the order
of detention, and as such the non-supply of certain documents seized G
-·~
from the premises after search to the detenu along with the grounds of
detention cannot be said to amount to an infringement of the provisions
of Art. 22(5) of the Constitution rendering the order of detention illegal
and bad.

Allowing the Appeal, the Court, H
802 SUPREME COURT REPORTS [1988! 2 S.C.R.

A HELD: t. It is crystal clear that certain documents though
placed before the Detaining Authority for consideration were not sup·
plied to the appellant within 15 days from the date of the order of t ..
detention as provided under s. 3(3) of the COFEPOSA Act. It is also
evident that on the request of the appellant by his representation made
on 6th April, 1987 the documents were supplied to him on 24th April,
B
1987. The relJresentation of the appellant was disposed of by the Advis-
ory Board on 29th April, 1987. In these circumstances, it cannot be
denied that the failure on the part of the Detaining Authority to supply
T
the aforesaid material documents prevented the appellant from making {
an effective representation against the grounds of his detention, and as
,...;..
such the mandatory provision of Art. 22(5) had not been complied with.
C The order of detention is, therefore, illegal and bad and the same is )
liable to be quashed. [807C·EI
\'
2. It is necessary for the valid continuance of the detention that
subject to Art. 22(6) copies of the documents, statements and other
materials relied upon in the grounds of detention should be furnished to
0 the detenu alongwith the grounds of detention or in any event not later
than live days and in exceptional circumstances and for reasons to be
recorded in writing not later than fifteen days from the date of deten·
tion. There are no exceptions or qualifications provided to this rule and
if this requirement of Art. 22(5) read with s. 3(3) COFEPOSA Act is not
satisfied the continued detention order of detenu would be illegal and
E void. Appellant directed to be released forthwith. [807G·H; 808A·B, Cl

Smt. lcchu Devi Clwraria v. Union of India and Ors., [1980] 4 ='
SCC 531 and Kam/a Kanahiyalal Khushalani v. State of Maharashtra
and Another, I1981 I 2 SCR 459 referred to.
F CRIMINAL APPELLATE JURISDICTION: Criminal Appeal"'\~ \.·
No. 54 of 1988. ~.

.From the Judgment and Order dated 9.10.1987 of the Delhi High
Court in Crl. W.P. No. 262 of 1987.
¥ ..
G Soli J. Sorabjee, Hukam Chand, Mrs. Nisha Bachi and Vijay K.
Verma for the Appellant.

B. Datta, Additional Solicitor General, P. Parmeswaran Ashok
K. Srivastava, A. Subha Rao and C.V. Subba Rao for the Res·
H pondents.
ASHOK KUMAR v. V.0.1. [RAY, J.] 803

The Judgment of the Court was delivered by A
.. ~ RAY, J. Special leave granted. Arguments heard.

This appeal by special leave is directed against the judgment and
order dated 9th October, 1987 passed by the High Court of Delhi in
Criminal Writ Petition No. 262 of 1987 discharging the rule and reject- B
-t ing the writ petition. ·

t The appellant was arrested and detained on 21st March, 1987
from his residence at Dahiwali Gali, Karol a Market, N aya Laxman
Mandir, Bharatpur by an order of detention made under Section 3(1)
of Conservation of Foreign Exchange and Prevention of Smuggling C
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 Detain-
ing Authority, Shri Tarun Roy, Joint Secretary to the Government of
India. It had been stated therein that the appellant may make any D
representation to the Advisory Board against his detention.

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 in-
dulging in illegal sale and purchase of foreign currency and also in the E
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 lOth December, 1986 under Section 37 of the Foreign
• Exchange Regulation Act, 1973:

(i) Premises situated in Purana Laxman Mandir, Opposite Dr. F
Ram Kumar, Bharatpur.

(ii) Premises situated in Daniwali Gali, Karola Market, Naya
Laxman Mandir, Bharatpur, and

(iii) Business premises of M/s Madanlal, Mohanlal and Baldev G
Singh, Karola, Laxman Mandir Crossing, Near Bata Shop,
Bharatpur.

On 6th April, 1987, the appellant made two representations; one
to the Detaining Authority, 2nd respondent and another to the Central
Government, the Ist respondent, In the representation to the Detain- H
804 SUPREME COURT REPORTS [1988) 2 S.C.R.
'("
ing Authority, the appellant stated that he had no concern whatsoever
A
as regards the residential premises situated at Purana Laxman Mandir,
I- '
Opp. Dr. Ram Kumar, Bharatpur where the search was conducted and
on such search US $ 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 pr<Wtises is situated in Dahiwali Gali, Karola
B Market, Naya Laxman Mandir, Bharatpur. It had also been stated
therein that the relevant documents on the basis of which the detaining T
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 6th April, 1987 also the appellant while reit~rating the
.}' 1

c 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
D Authority supplied him the relevant documents and also the informa-
tion asked for in his letter dated 6th April, 1987 only on 24th April,
1987. The appellant also made a representation before the Advisory
Board on 27th April, 1987.

The appellant was produced before the Advisory Board on 29th
E April, 1987 and the Advisory Board heard the appellant in respect of '¥
his representation. The appellant received a communication dated 7th
May, 1987 from the respondent No. 1 stating therein that his detention ~··-

had been confirmed with effect from 21st March, 1987 for a period of
one year. •

F The appellant thereafter challenged the order of detention by a
_,
writ petition and also prayed for quashing of the said order of deten-
tion 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

G
supplied to him along with the grounds of detention, were not supplied
to him. The grounds of detention were supplied to him on 21st March,
•..
1987 whereas the vital documents were supplied to him as late as on
24th April, 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 in as much as the appellant could not make an
H effective representation against his order of detention in accordance
ASHOK KUMAR v. U.0.1. (RAY, J.) 805
_,r
with the mandatory provisions of Article 22(5) of the Constitution of A
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 6th April, B
-t" 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 29th April, 1987 and as such there was
delay of 23 days which had not been explained. This unusual delay in
.ii the disposal of the detenu's representation renders the order of deten-
l tion bad.
c
A counter affidavit was filed on behalf of respondent Nos. 1 and
2 affirmed by one Shri S.K. Chaudhary, Under Secretary, Ministry of
Finance, Department of Revenue. In para 4 of the said affidvait 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 D
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 re-
presentation of 6th April, 1987 received in the office of the Detaining
Authority on 15th April, 1987 was totally irrelevant for the purpose of
making any representation. In para 10 of the said affidavit it had been E
-~
stated that the detenu was supplied with more documents numbering
150 pages on 24th April, 1987 i11 pursuance of his representation dated
6th April, 1987, although the same were not relied upon in forming the
subjective satisfaction of the Detaining Authority. The Detaining
...tuthority, Shri Tarun Roy, Joint Secretary to the Government of
_f ' India, Department of Revenue, Ministry of Finance, New Delhi in F
, 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 G
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 H
806 SUPREME COURT REPORTS 11988] 2 S.C.R.
y-
are mentioned to be relied in the list of documents annexed
A
with the grounds of detention."

The learned Judge of the Delhi High Court while dismissing the
writ petition observed that in view of the affidavit filed by the Detain-
ing Authority, the respondent No. 2, that all the documents seized
B 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 r
-
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.
c 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 violates the provisions of Article
22(5) of the Constitution as the appellant was prevented from making
D effective representation to the grounds of detention. It has been sub-
mitted 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
E Gali, Karola Market, Naya Laxman Mandir, Bharatpur and not in
Purana Laxrnan 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 $ as well as the primary gold which were
found out on search from the house in Purana Laxman Mandir cannot
be connected with the aJ?pellant as he had specifically stated in h~ -
F 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 handi-
capped the appellant in making an effective representation against the "-
G grounds of detention served on him.

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 Sec-
retary to the Government of India, Department of Revenue, Ministry
H of Finance, that he did not consider those documents though the same
ASHOK KUMAR v. U.0.1. (RAY, J.J 807

were placed before him in forming his subjective satisfaction in making A
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 B
recovered belonged to the appellant.

After considering the submission, 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) C
of the said Act. It is also evident from the affidavit of Shir S.K.
Chaudhary, Under Secretary, Ministry of Finance, Department of
Revenue, New Delhi that on the request of the appellant by his re-
presentation dated 6th April, 1987, the documents were supplied to
him on 24th April, 1987. The representation of the appellant was
disposed of by the Advisory Board on 29th April, 1987. In these D
circumstances, it cannot be denied that the failure on the part of the
Detaining Authority to supply the aforesaid material documents pre-
vented 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 E
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.

is pertinent to refer here to the decision of this Court in Smt.
r Icchu ItDevi Choraria v. Union of India and Ors., [1980) 4 SCC 531 F
f 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 right 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 mean- G
-y ingfully 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, H

/
808 SUPREME COURT REPORTS I1988) 2 S.C.R.

A not later than fifteen days from the date of detention. There are no
exceptions or qualifications provided to this rule and if this require-
ment 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 and Another, (1981) 2
B SCR459.
For the reasons aforesaid, we allow the appeal and set aside the

c
judgment and order of the High Court and quash the order of deten-
tion. We direct the Government to release the appellant from jail
forthwith. There will be no order as to costs. -
'

N.V.K. Appeal allowed.

-