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TMI Blog2006 (10) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of our findings aforementioned, it is not necessary to consider the contention raised by Mr. Mukul Rohtagi that order of detention suffers from non-application of mind. The judgment of the High Court, therefore, cannot be sustained. It is set aside accordingly and the order of detention passed against Appellant is quashed. The appeal is allowed. - Appeal (civil) 4563 of 2006 - - - Dated:- 19-10-2006 - S.B. Sinha Dalveer Bhandari, JJ. JUDGMENT S.B. SINHA, J. Leave granted. Appellant before us was detained under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short "COFEPOSA"). He is the Managing Director of a company, registered and incorporated under the provisions of the Companies Act, known as M/s. Sundesh Springs Private Limited. It was an exporter and held a valid licence therefor. The company was to export products of alloy steel. Upon exporting of alloy steel, it was entitled to credits under the Duty Entitlement Pass Book (DEPB) Scheme introduced by the Government of India with an object of encouraging exports. He allegedly misdeclared both the value and description of goods upon procuring fake an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to in the order of detention as also non-application of mind on the part of the detaining authority had been raised. In the meantime admittedly the period of detention being over, Appellant had been set at large. He was released from custody on 17.5.2006. This appeal, however, has been pressed as a proceeding under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (for short "SAFEMA"), has been initiated against Appellant. We may first deal with the question of unexplained delay. In this regard we may notice the following dates. On 13.10.2003, Appellant was arrested. He was discharged on bail on 6.1.2004. Several inquiries were conducted both inside and outside India. A report in relation to overseas inquiry was received on 12.5.2004. On 25.6.2004 proposal of detention was sent which was approved on 2.12.2004. On 20.12.2004, the authorities of the DRI stated that transactions after 11.10.2003 were not under scrutiny. Furthermore, the authorities of the DRI by a letter dated 28.02.2005 requested the Bank to defreeze the bank accounts of Appellants. The order of detention was passed on 5.4.2005. The learned Additional Solicitor General, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Furthermore, as noticed hereinbefore, the authorities of the DRI by a letter dated 28.02.2005 requested the Bank to defreeze the bank accounts of Appellant. The said documents, in our opinion, were material. It was, therefore, difficult to appreciate why order of detention could not be passed on the basis of the materials gathered by them. It is no doubt true that if the delay is sufficiently explained, the same would not be a ground for quashing an order of detention under COFEPOSA, but as in this case a major part of delay remains unexplained. We may also place on record that Sen., J. in Rajendrakumar Natvarlal Shah (supra), while laying down various stages of the procedures leading to an order of detention, opined that rule as to unexplained delay in taking action is not inflexible and a detention under COFEPOSA may be considered from a different angle. The question came up for consideration recently in Rajinder Arora v. Union of India and Others [(2006) 4 SCC 796] wherein it has been held: "Furthermore no explanation whatsoever has been offered by the Respondent as to why the order of detention has been issued after such a long time. The said question has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this delay, unless satisfactorily explained, would throw considerable doubt on the genuineness of the subjective satisfaction of the District Magistrate, Burdwan recited in the order of detention. It would be reasonable to assume that if the District Magistrate of Burdwan was really and genuinely satisfied after proper application of mind to the materials before him that it was necessary to detain the petitioner with a view to preventing him from acting in a prejudicial manner, he would have acted with greater promptitude both in making the order of detention as also in securing the arrest of the petitioner, and the petitioner would not have been allowed to remain at large for such a long period of time to carry on his nefarious activities..." In Abdul Salam Alias Thiyyan S/o Thiyyan Mohammad, Detenu No. 962, General Prison, Trivandrum v. Union of India and Others [(1990) 3 SCC 15] whereupon the learned Additional Solicitor General has placed strong reliance, this Court found that there had been potentiality or likelihood of prejudicial activities and, thus, or mere delay, as long as, it is explained, the court may not strike down the detention. In the instant case, we have not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l court proceedings were not placed before the detaining authority. If the same had not been done, not only the delay, in issuing the order of detention stood unexplained but also thereby the order itself would become vitiated. Furthermore, the civil court proceedings were over on 19.11.2004. Evidently, the detaining authority did not take immediate steps to detain Appellant. Why the documents pertaining to the proceedings of the Civil Court had not been placed before the detaining authority has not been explained. On their own showing, Respondents admit that they were relevant documents. The question has been considered by this Court in Rajinder Arora (supra) stating: "Admittedly, furthermore, the status report called for from the Customs Department has not been taken into consideration by the competent authorities. A Division Bench of this Court in K.S. Nagamuthu v. State of Tamil Nadu Ors. [2005 (9) SCALE 534] struck down an order of detention on the ground that the relevant material had been withheld from the detaining authority; which in that case was a letter of the detenu retracting from confession made by him." In P. Saravanan v. State of T.N. and Oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to in extenso in the order of detention. It is, however, stated that the records were tampered with at the instance of Appellant. The self-inculpatory statements of Appellant and that of Prabhjot Singh were said to have been taken off the file. Respondents contended that on first information report was registered against Appellant as also one sepoy Narender Singh. But the said information report was registered only on 6.4.2005 and not prior to the date of order of detention. In paragraph 36 of the order of detention, the detaining authority stated: "In view of the facts mentioned above, I have no hesitation in arriving at the conclusion that you have through your acts of omission and commission indulged in prejudicial activities as narrated above. Considering the nature and gravity of the offence, the well planned manner in which you have engaged yourself in such prejudicial activities and your role therein as brought out above, all of which reflect your high potentiality and propensity to indulge in such prejudicial activities in future, I am satisfied that there is a need to prevent you from indulging in such prejudicial activities in future by detention under C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the detenu must show that the failure to supply the documents before the meeting of the Advisory Board had impaired or prejudiced his right, however slight or insignificant it may be. In the present case, except stating that the documents were not supplied before the meeting of the Advisory Board, there is no pleading that it had resulted in the impairment of his right nor could counsel for the petitioners point out any such prejudice. We are, therefore, of the opinion that the view taken by the Bombay High Court in this behalf is unassailable." (Emphasis supplied) What is, therefore, relevant was as to whether the documents were material. If the documents were material so as to enable the detenue to make an effective representation which is his constitutional as also statutory right, non-supply thereof would vitiate the order of detention. It is a trite law that all documents which are not material are not necessary to be supplied. What is necessary to be supplied is the relevant and the material documents, but, thus, all relevant documents must be supplied so as to enable the detenue to make an effective representation which is his fundamental right under Article 22(5) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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