2005 (8) TMI 381 - SC - Companies Law

Whether the detenue s right to make a representation against the order of detention, is hampered by non-supply of the particular document? Held that - Appeal dismissed. In the present case although the detaining authority in the grounds of detention had referred to the passports and the entries made therein for the foreign trips made by the detenue but that cannot be said to have been relied upon by the detaining authority for passing the detention order. It is detenue s own statement made before the authorities on 17-7-2004, was the basis for passing of the detention order and reference of the two passports containing entries of the foreign visits by the detenue is only a passing reference. The passport entries are not made the basis of detention order. The basis is admission of the foreign visits made by the detenue in his statement. Thus failure to understand as to how non-supply of copies of the passports of the appellant-detenue prejudicially affect his right to make a proper representation against the order of detention. The non-supply of copies of the passports will not have the effect of vitiating the detention order.

Summary

Issues:
Challenge to detention order under COFEPOSA Act based on non-supply of documents relied upon by detaining authority for passing the order.

Analysis:
The appellant challenged the detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) due to the non-supply of documents relied upon by the detaining authority. The detenue argued that failure to provide copies of seized passports referred to in the order amounted to a denial of the right to make an effective representation as guaranteed under Article 22(5) of the Constitution of India. The detenue contended that without the copies of the passports, the detention order was non-compliant with constitutional protections and should be quashed.

The detaining authority had mentioned in the grounds of detention the detenue's statement regarding his foreign trips and the value of seized goods. The detenue's admission of frequent foreign travels for bringing goods for sale in India was the basis for passing the detention order, not the passport entries. The Supreme Court emphasized the detenue's right to receive documents relied upon by the detaining authority for passing the detention order. However, the Court clarified that only documents crucial to forming the opinion of preventive detention need to be supplied, not every document mentioned in the order. The Court highlighted that the detenue must demonstrate how the non-supply of documents impaired the right to make an effective representation.

In this case, the Court found that the detenue's right to make a representation against the detention order was not hampered by the non-supply of copies of the passports. The detaining authority did not rely on the passport entries but on the detenue's statement about his foreign visits. As a result, the non-supply of passport copies did not vitiate the detention order. The Court dismissed the appeal without any order as to costs, upholding the detention order under the COFEPOSA Act.

This judgment underscores the importance of providing detenues with material documents relied upon by the detaining authority for passing detention orders. It clarifies that the detenue's right to effective representation must not be impaired by the non-supply of specific documents crucial to the decision-making process. The ruling establishes a balance between the detenue's rights and the legal requirements for preventive detention under the COFEPOSA Act.