Allowed

Ramesh Singh v. the State of Maharashtra

Bombay HC10 Feb 2005WP/1254/2004

Case brief

AI extract

What is this about?

The High Court held that the continued detention of a detainee under COFEPOSA was illegal. The detaining authority failed to place before the Advisory Board the order of revocation of a co-detenu and its grounds, despite the detainees belonging to the same smuggling syndicate. This omission denied the detenu a fair opportunity to make representation under Article 22(5), vitiating the Board's opini

What did the court decide?

The continued detention of the detenu, Dilip Kumar Mandal, held illegal. Respondents directed to release the detenu forthwith.

Ramesh Singh Vs the State of Maharashtra — Quashing and FIR | Bombay HC (2005)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 APPELLATE JURISDICTION
 CRIMINAL WRIT PETITION NO.1254 OF 2004

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 Ramesh Singh, )
 an Indian Inhabitant, )
 residing at C-45, Sector 4 Airoli, )
 Navi Mumbai - 400 708. ).. Petitioner
 (Friend of the Detenu)
 Vs.
 1. The State of Maharashtra, )
 Through the Secretary to the )
 Govt.of Maharashtra, )
 Home Department, Mantralaya, )
 Mumbai - 400 032. )
 2. Neela Satyanarayan, )
 The Principal Secretary )
 (Appeals and SEcurity) to the )
 Government of Maharashtra, )
 Home Department and Detaining )
 Authority, Mantralaya, )
 Mumbai - 400 032. )
 3. The Superintendent of Prison, )
 The Mumbai Central Prison, )
 Arthur Road, Mumbai. )
 4. The Superintendent of Prison, )
 Nasik Road Central Prison, )
 Nasik. )..Respondents
 --
 Shri Maqsood Khan for the petitioner.
 Shri D.S.Mhaispurkar, APP for the respondents.
 --
 CORAM : R.M.S.KHANDEPARKAR &
 P.V.KAKADE, JJ.
 DATED : 10th February, 2005.
ORAL JUDGMENT : ( Per R.M.S.Khandeparkar, J )

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 1. The petitioner challenges the order of

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 detention dated 3rd October, 2003 issued under Section
 3(1) of the Conservation of Foreign Exchange and
 Prevention of Smuggling Activities Act, hereinafter
 referred to as "COFEPOSA".

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 2. The order of detention was issued on 3rd

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 October, 2003 and was served on 8th May, 2004. The
 Advisory Board’s meeting was held on 11th June, 2004.
 The present petition was filed on 28th June, 2004.
 Meanwhile, the detention order of the same date issued
 against the co-detenu by name Rajendra Tripathi was
 revoked on 4th December, 2003 pursuant to the
 representation made by the said co-detenu through his
 lawyer on 27th November, 2003.

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 3. The petitioner challenges the detention order
 on four grounds. Firstly, consequent to the
 revocation of the detention order against the
 co-detenu whose role, as revealed from the grounds in
 support of the order, being disclosed as constituting
 the activities of abating the smuggling of the goods,
 which is not different from the one disclosed in
 relation to the detenu in this case, the detention
 order against the detenu therefore stands vitiated.
 Secondly, the State Government was under the

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 obligation to forward the order of revocation of the
 co-detenu along with the representation made by him to
 the Advisory Board before consideration of the case of
 the detenu by the Advisory Board, as having failed to
 do so, the continued detention of the detenu is bad in
 law. Thirdly, in spite of the repeated requests for
 copies of the representation by the co-detenu Rajendra
 Tripathi and order of revocation of his detention, the
 same have not been supplied to the detenu and thereby
 the detenu has been denied of fair opportunity to make
 effective representation in exercise of his right
 assured under Article 22(5) of the Constitution of
 India. Fourthly that the decision on the
 consideration of the representation by the petitioner
 to the State Government has not been communicated to
 the detenu. Though the challenge to the impugned
 order is on the four grounds, it is not necessary to
 deal with all the four grounds and suffice to refer to
 only one ground which relates to the failure on the
 part of the respondents to place before the Advisory
 Board, the copy of the representation by the co-detenu
 and that of the order of revocation of his detention
 before consideration of the case of the detenu by the
 Advisory Board.

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 4. While elaborating the contention in relation

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 to the grounds of challenge under consideration, the
 learned Advocate appearing for the petitioner
 submitted that the order of detention which was issued
 against the co-detenu Rajendra Tripathi having been
 revoked on 4th December, 2003 pursuant to the
 representation made by him through his Advocate, it
 was incumbent upon the State Government and the
 detaining authority to place before the Advisory board
 the revocation order of the co-detenu Rajendra
 Tripathi along with the reasons recorded by the State
 Government for revocation of the order of detention of
 the co-detenu Rajendra Tripathi so as to enable the
 Advisory Board to consider the case of the petitioner
 in proper perspective before giving its opinion in the
 matter as regards the detention of the detenu. It was
 his further contention that the detenu had neither
 knowledge nor opportunity to have the representation
 of the co-detenu being made available on record,
 alongwith the order of revocation of the order of
 detention against the said co-detenu by the
 respondents and the grounds on which the said order of
 revocation was passed, and therefore, it was
 absolutely necessary for the respondents to take
 appropriate steps to make all those documents
 available before the Advisory Board on or before 6th
 June, 2004 when the Advisory Board had met to consider

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 the case in relation to the detention of the present
 detenu. Having not done so, the respondents have
 denied the fair opportunity to the detenu to make
 effective representation against his detention, and it
 is more so in view of the failure on the part of the
 respondents to forward copies of the grounds on which
 the order of detention of the co-detenu has been
 revoked to the petitioner inspite of the fact that the
 grounds in support of the orders passed against both
 the detenus disclosed not only similar role being
 played by both of them but also the alleged acts of
 abatement of smuggling having been done in connivance
 with each other and further that the activities of the
 present detenu having been disclosed either at the
 instance of or under the instructions from the other
 co-detenus including Rajendra Tripathi.

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 5. The learned APP, on the other hand, has
 submitted that considering the role of the detenu that
 he was the Proprietor of M/s. United Export India
 Limited and about his involvement in the earlier
 activities and about the likelihood of his indulging
 in similar activities in future, mere revocation of
 the order of detention against the co-detenu will not
 enure to the benefit of the present detenu, and
 therefore, non production of such documents before the

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 Advisory Board would not be fatal nor it would amount
 to denial of an opportunity to the detenu to make
 effective representation in exercise of his right
 under Article 22(5) of the Constitution of India. It
 is his contention that the documents in question were
 not material for the purpose of consideration of the
 case of the detenu by the Advisory Board and being so,
 it was not necessary to produce those documents before
 the Advisory Board in its meeting in relation to the
 petitioner’s case. In any case, it is the contention
 of the learned APP that nothing prevented the detenu
 from bringing the fact about the revocation of the
 order of detention against the co-detenu to the notice
 of the Advisory Board at the time he was heard before
 it, and failure in that regard cannot enure to the
 benefit of the detenu to contend that his continued
 detention to be illegal. It is the contention on
 behalf of the respondents that the activities by the
 detenu, apart from his activities in connivance with
 each other, the present detenu disclosed his active
 participation in abating the smuggling by allowing the
 name of his company to be used for fraudulent exports.
 Reliance is also placed by the learned APP in the
 decision of the Division Bench of this Court in the

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 matter of Kirti Kumar Narulla v. State of Maharashtra
& Ors., reported in 2004(3)Mh.L.J. 505 to contend

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 that it was not obligatory upon the respondents to
 furnish copies of the order of revocation of detention
 of the co-detenu and the grounds in support thereto to
 the detenu.

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 6. Perusal of the order of detention and the

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 grounds in support of the order disclose that the
 detaining authority had arrived at the satisfaction
 about the likelihood of the detenu indulging in
 abatement of smuggling of the goods, on the basis of
 the materials which disclosed that the exports were
 being made in the name of the companies like Sudha
 Fashions, Surya Jaipur Rugs, Sterling Enterprises,
 United Exports and were being stage managed by Ramji
 Mishra and the arrangements for the exports were made
 by the detenu along with Subhash Dubey and Rajendra
 Tripathi. In fact the detenu had allowed the use of
 his company M/s.United Exports for monetary
 consideration to Ramji Mishra with full knowledge of
 what was being attempted to be exported in the name of
 the detenu’s firm and that undue benefits would flow
 from the Government Exchequer to the syndicate which
 included the detenu as well as Rajendra Tripathi. The
 fact that the goods and their packing pertaining to
 the so-called different exporters were similar in
 nature and that the goods the exporters had stuffed

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 together in a container could not be segregated,
 established the fact that the fraudulent exports in
 respect of the said firms were perpetrated by the
 persons of a common syndicate. These findings by the
 detaining authority obviously disclose that the detenu
 along with Subhash Dubey, Rajendra Tripathi and Ramji
 Mishra, forming a common syndicate, were involved in
 the alleged activities of fraudulent exports.
 Undoubtedly, the detenu had allowed the use of his
 company M/s.United Exports for the purpose of such
 exports for monetary consideration. At the same time,
 however, the grounds also disclose that the
 documentations in relation to such exports were
 prepared and signed by the detenu as per the
 instructions of Subhash Dubey and the said Rajendra
 Tripathi. The grounds also disclose that the detenu
 had been doing the clearing business in the same
 manner like Tripathi. The grounds also disclose that
 Tripathi was to benefit certain percentage of drawback
 amount along with Subhash Dubey so also the detenu for
 allowing his company’s name for the purpose of
 exports. The grounds apparently disclose that the
 alleged activities were in the nature of exporting the
 goods by inflating the prices and thereby enjoying
 high drawback facilities defrauding the public
 exchequer to that extent, and these activities were

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 carried out by all these persons viz. the detenu,
 Rajendra Tripathi, Subhash Dubey, Ramji Mishra, etc.
 being the members of a syndicate. Though some of the
 acts have been shown to be attributable independently
 to each of the persons of the syndicate, at the same
 time, those acts were found to be a forming part of
 activities for availing drawback facility by illegal
 method and means. Being so, the contention that the
 role of the detenu is totally independent of the role
 of Rajendra Tripathi, co-detenu, and that therefore,
 revocation of the order of detention of the co-detenu
 Rajendra Tripathi cannot enure to the benefit of the
 detenu is totally devoid of substance. The said
 argument on behalf of the respondents does not find
 any support from the grounds for issuance of order of
 detention against both the detenus. In view of the
 revocation of the order of detention of the co-detenu,
 the explanation for the continued detention of the
 detenu is thoroughly unconvincing. Apart from
 contending that the role of the detenu would not
 warrant similar treatment as given to his co-detenu,
 the respondents have not disclosed the reasons for
 revocation of the order of detention of the co-detenu.
 It is further pertinent to note that the order of
 detention issued against Rajendra Tripathi was revoked
 on 4th December, 2003 much prior to the date of giving

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 effect to the order of detention issued against the
 detenu who was taken into custody only on 8th May,
 2004, pursuant to the order dated 3rd October, 2003.
 Undoubtedly, the contention is that the detenu was
 absconding for the said period, that is totally a
 different issue. But the fact remains that on the day
 when the order against the detenu was given effect to,
 the order of detention issued against the co-detenu
 had already been revoked.

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 7. It is undisputed fact that the detenu had
 requested for the copies of the representation made by
 the detenu and the order passed thereon including the
 reasons for revocation of the order of detention
 against the co-detenu, however, the same have not been
 furnished to the detenu. Whether the detenu, as a
 matter of right, was entitled to the copies or not is
 a different issue which is not relevant for the
 decision in the present case. The fact remains that
 the detenu was not in possession of those documents at
 the time when his case was taken up for consideration
 by the Advisory Board on 11th June, 2004. At the same
 time, those documents were certainly available with
 the respondents. Considering the fact that the role
 of the present detenu was not totally an independent
 of the role played by the said co-detenu Rajendra

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 Tripathi in the activities of abetting the smuggling,
 as revealed from the grounds of detention order, and
 that the activities of the detenu were, as a member of
 the syndicate to which the co-detenu Tripathi also
 belonged, the learned Advocate for the petitioner is
 justified in contending that it was absolutely
 necessary for the respondents to place those documents
 before the Advisory Board at the time when the case of
 the detenu was considered.

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 8. Section 8 of COFEPOSA deals with the subject
 of Advisory Board, its meeting and its report, and in
 particular, clause (c) thereof provides that the
 Advisory Board to which a reference is made under
 clause (b) shall after considering the reference and
 the materials placed before it and after calling for
 such further information as it may deem necessary from
 the appropriate Government or from any person
 concerned, and if, in any particular case, it
 considers it essential so to do or if the person
 concerned desires to be heard in person, after hearing
 him in person, prepare its report specifying in a
 separate paragraph thereof its opinion as to whether
 or not there is sufficient cause for the detention of
 the person concerned and submit its report. This
 provision obviously discloses that the concerned

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 authority have to place before the Advisory Board all
 the relevant materials in relation to the case of the
 detenu under consideration before the Advisory Board
 and that the Advisory Board is fully empowered to call
 for further information if it deems necessary. Once
 it is not in dispute that the detenu was not in
 possession of the documents relating to the
 representation by the co-detenu, the order of
 revocation of the detention of the co-detenu and the
 reasons for such revocation, and in the facts stated
 above, it was but obvious that those documents were
 material for consideration of the case of the detenu
 and the same were required to be placed before the
 Advisory Board. Once it is apparent from the grounds
 that Rajendra Tripathi, co-detenu, and the detenu had
 conducted their activities, as forming members of the
 same syndicate, irrespective of the independent
 additional activities carried out by each of them,
 certainly the reasons for revocation of the order of
 detention of the co-detenu Rajendra Tripathi were
 relevant for consideration by a Board. Undoubtedly,
 the powers of the Advisory Board are in the form of
 review of the order passed by the detaining authority.
 Being so, the Advisory Board is independently entitled
 to re-assess all the materials considered by the
 detaining authority as well as which might have come

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 into existence even thereafter and being relevant for
 consideration as to whether the continued detention to
 be valid and/or necessary. Any failure on the part of
 the respondents to bring such material documents
 before the Advisory Board would virtually amount to a
 denial of fair opportunity to the detenu to have his
 case considered by the Advisory Board in a fair and
 just manner, and on appreciation of all the materials
 in proper perspective by the Advisory Board. The said
 failure would result in denial of right to the detenu
 which is otherwise assured to him under Article 22(5)
 of the Constitution of India.

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 9. The decision of Division Bench in Kirti Kumar

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Narulla’s case (supra) is to the effect that the
 detaining authority has no obligation to furnish
 copies to the detenu in relation to the documents
 placed before the Advisory Board while dealing with
 the scope of Article 22(5) of the Constitution of
 India. That does not lead to conclusion that the
 authority will be entitled to withhold the documents
 from the Advisory Board irrespective of the fact that
 such documents are relevant and material for the
 purpose of consideration of the case of the detenu by
 the Advisory Board. A document which discloses the
 reasons for revocation of the order of detention of

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 the co-detenu, who was apparently ordered to be

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 detained on the ground that he was a member of
 syndicate to which the detenu also belonged, it can
 hardly be said that such a document is irrelevant or
 immaterial for the purpose of consideration of the
 case of the detenu by the Advisory Board. Hence, the
 decision in Kirti Kumar Narualla’s case (supra) is of
 no assistance to the respondents to justify their
 action regarding failure on their part to place the
 said documents before the Advisory Board.

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 10. For the reasons stated above, therefore, the
 opinion given by the Advisory Board would stand
 vitiated on account of failure on the part of the
 respondents to place before it the relevant documents
 at the time of consideration of the case of the
 present detenu, and on that count itself, the
 continued detention of the detenu would be illegal.

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 11. Considering the view that we are taking in
 relation to the ground regarding failure on the part
 of the respondents to place the relevant documents
 before the Advisory Board, it is not necessary to deal
 with the other grounds of challenge raised by the
 petitioner in the case in hand.

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 12. In the result, the Petition succeeds. The

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 continued detention of the detenu Dilip Kumar Mandal
 is held to be illegal. The Respondents are directed
 to release the detenu Shri Dilip Kumar Mandal
 forthwith unless required in any other matter. The
 rule is made absolute accordingly with no order as to
 costs.

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 ( R.M.S.Khandeparkar, J )

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 ( P.V.Kakade, J )

Ramesh Singh v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Ramesh Singh v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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