2015 (5) TMI 1120 - HC - FEMA

Issuance of a writ in the nature of Habeas Corpus in the matter of detention of the petitioner, who is detained passed by the Joint Secretary, Government of India (COFEPOSA), New Delhi - Held that - Having regard to the categorical assertions made by the learned Additional Solicitor General we are of the view that since a copy of the representation was only marked to the Advisory Board and no copy was supplied to either the Central Government or the detaining authority, it is not open for the petitioner to say that the representation was not decided by them, irrespective of the fact that the representation was addressed to the Advisory Board. Undoubtedly, in case the representation had been served upon the Central Government or the detaining authority, it would have been mandatory for them to have decided the same. The additional ground raised by counsel for the petitioner i.e., in the absence of documents as admitted by the respondents in the time-chart, the detention order is bad in law and is liable to be quashed, is also without any force, as the time-chart leaves no room for doubt that prior to the passing of the detention order all documents sought to be relied upon were received. Having carefully examined the time-chart, relevant portion of which has been reproduced above, would show that it is only after all the documents were received and examined the detention order was passed. Hence, the submission of counsel for the petitioner that the detention order is bad in law and is liable to be quashed, as the same is passed in the absence of the relevant documents, is also without any force. No other ground has been urged before this court. In view of the reasons aforestated, we do not find any reason to entertain the present petition and the same is accordingly dismissed, leaving the parties to bear their own costs.

Summary

Issues Involved:
1. Language of Detention Order and Documents
2. Delay in Deciding Representation
3. Failure to Decide Representation Addressed to Advisory Board
4. Availability of Documents at the Time of Detention Order

Issue-wise Detailed Analysis:

1. Language of Detention Order and Documents:
The petitioner argued that the detention order and documents were provided in English, a language he could not understand, violating Article 22(5) of the Constitution. The petitioner, educated in Bengali, claimed limited English proficiency. The court, however, found this argument unconvincing. The petitioner had acknowledged receipt of the documents in English and made endorsements in English, indicating sufficient understanding. The court cited previous judgments (e.g., Kubic Darusz v. Union of India) to assert that a workable knowledge of English suffices, and the petitioner's actions demonstrated such knowledge. Thus, the court dismissed this ground.

2. Delay in Deciding Representation:
The petitioner contended that his representation dated 05.02.2015 was not decided promptly, taking 13 days. The court examined the timeline and noted that the representation was the third one, with no new grounds raised. The court referenced D. Anuradha Vs. Joint Secretary & Anr., emphasizing that while representations must be decided expeditiously, the delay in this case was not inordinate or unexplained. The court found no merit in this ground, noting that previous representations had been decided promptly.

3. Failure to Decide Representation Addressed to Advisory Board:
The petitioner claimed that a representation dated 01.12.2014, addressed to the Advisory Board, was not decided by the Central Government or the detaining authority. The court, relying on categorical assertions from the Additional Solicitor General, found that this representation was not served on the Central Government or the detaining authority. The court held that without service to these authorities, they could not be faulted for not deciding the representation. The court referenced relevant cases (e.g., Smt.K.Aruna Kumar Vs. Govt. of Andhra Pradesh) to support its decision.

4. Availability of Documents at the Time of Detention Order:
The petitioner argued that not all documents were available to the detaining authority when the detention order was passed. The court examined the time-chart provided by the respondents, showing a detailed timeline of document receipt and examination. The court found that all necessary documents were received and examined before issuing the detention order on 26.09.2014. Thus, the court dismissed this ground, finding the detention order legally sound.

Conclusion:
The court dismissed the petition, finding no merit in the arguments presented. The court emphasized the petitioner's sufficient understanding of English, the reasonable timeline for deciding representations, the procedural correctness regarding the representation addressed to the Advisory Board, and the completeness of documents at the time of the detention order. The petition was dismissed, with parties bearing their own costs.