1980 (9) TMI 271 - SC - FEMA

Whether the petitioner who has been detained in pursuance of an order dated the 29th May 1980 issued by the Government of Maharashtra in exercise of the powers conferred on it by clause (a) of section 5 of the Conversion of Foreign Exchange and Prevention of Smuggling Activities Act 1974 shall be immediately released from custody which according to him is illegal? Held that - It is now settled law that the detaining authority is bound to give opportunity to the detenu to make a representation against his detention and also to consider the same as early as possible and that any unreasonable delay in furnishing to the detenu copies of documents which form the basis of the grounds of detention amounts to denial to him of such opportunity. And it goes without saying that such denial of opportunity makes the detention itself illegal. That precisely is the situation which obtains in the present case and the petitioner is therefore entitled to be released forthwith. Appeal allowed.

Summary

Issues Involved:
1. Legality of the petitioner's detention.
2. Delay in providing documents to the petitioner.
3. Opportunity for the petitioner to make a representation.
4. Compliance with procedural requirements by the detaining authority.

Issue-wise Detailed Analysis:

1. Legality of the Petitioner's Detention:
The petitioner was detained under an order dated 29th May 1980 by the Government of Maharashtra, exercising powers under section 5(a) of the Conversion of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The petitioner contended that his detention was illegal and sought immediate release under Article 32 of the Constitution of India. The grounds for detention included an attempt to smuggle 19 silver bars on 3rd February 1980 and the recovery of 92 silver bars from his residence on 4th February 1980.

2. Delay in Providing Documents to the Petitioner:
The petitioner requested relevant documents on 6th June 1980 to make an effective representation against his detention. The documents were not supplied until 11th July 1980, a delay of 32 days. The delay was explained through affidavits by C. R. Mulherkar, Deputy Secretary to the Government of Maharashtra, and S. G. Rege, Assistant Collector of Customs. The explanations included administrative delays, public holidays, and workload. However, the Court found the explanations unsatisfactory, noting that several days during the period were unaccounted for, and the procedure adopted for handling the request was inefficient.

3. Opportunity for the Petitioner to Make a Representation:
The petitioner argued that the delay in providing documents denied him an effective opportunity to make a representation against his detention. The Court agreed, stating that the detaining authority is bound to provide the detenu with an opportunity to make a representation and consider it as early as possible. The unreasonable delay in furnishing documents amounted to a denial of this opportunity, making the detention illegal.

4. Compliance with Procedural Requirements by the Detaining Authority:
The Court emphasized that the detaining authority must retain copies of all documents forming the basis of detention and provide them promptly upon request. The failure to do so in this case led to the petitioner's illegal detention. The Court suggested that the detaining authority should either retain copies of all relevant documents or ensure they are forwarded directly to the detenu without unnecessary delays.

Conclusion:
The Court declared the petitioner's detention illegal due to the unreasonable delay in providing documents, which denied him the opportunity to make an effective representation. The Court directed the immediate release of the petitioner and emphasized the need for the detaining authorities to adopt procedures ensuring prompt and efficient handling of document requests in future detention cases.

Separate Judgment by Krishna Iyer, J.:
Krishna Iyer, J. concurred with the judgment, highlighting the importance of procedural protection in the law of liberty. He criticized the Executive's indifference to compliance with legal requirements and stressed the need for prompt prosecution and preventive detention of economic offenders. He lamented the slow judicial and administrative processes and urged for effective communication between the courts and the administration to ensure that legal rulings are promptly implemented.

Petition Allowed.