RAMESHWAR DASS Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner was detained in pursuance to detention order dated 2.5.1994 made under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to "COFEPOSA"). It is submitted by the learned counsel for the petitioner that detenu was placed under arrest on 17.8.1993 and produced in the Court of Additional Chief Metropolitan Magistrate on 18.9.1993. Thereafter he was remanded to judicial custody. It was extended from time to time and ultimately the detenu was released on bail on 26.10.1993. It has also been stated by the petitioner that as the surety of the petitioner moved the Court for cancellation of surety, the petitioner was again taken into custody on 16.5.1994. The order of detention was served on the petitioner when he was in judicial custody on 17.5.1994. The learned counsel for the petitioner has also argued that when the petitioner was in judicial custody on 16.5.1994 the detention order which was served on 17.5.1994, and no bail application was pending before the Court, there was no imminent likelihood of release of the petitioner from the judicial custody and, therefore, the detention is wholly unwarranted, unjustified and illegal. Another ground of challenge to the detention order raised by the learned counsel for the petitioner is that the subjective satisfaction of the detaining authority stood vitiated as the detaining authority relied upon the incriminating statement of co-detenu, Prem Prakash, and has not considered the retraction statement of the detenu filed on 8.4.1994 on his production in the Court. It has also been argued that the said retraction was neither placed before nor considered by the detaining authority as the same did not find mention in the list of documents supplied to the detenu along with the grounds of detention.

(2.) The next ground urged before me by the learned counsel for the petitioner is that the petitioner was served about 1760 pages, however, on careful perusal the detenu pointed out certain documents as not legible in his interim representation dated 30.6.1994 and requested for legible copies of the same. It was only on 9.7.1994 detenu was served a fresh set of re- quested documents but by that time the meeting of the Advisory Board was already held and detenu could not represent him properly and effectively. Non-supply of the documents within the statutory period implies to an infraction of his right under Article 22(5) of the Constitution of India as the detaining authority has failed to communicate the entire material relied upon and on this ground also he has assailed the detention order. Apart from these grounds, the other grounds have also been urged by the petitioner like non-supply of ground of detrition and relied upon docu- ments in Hindi language known to the detenu, supply of irrelevant docu- ments taken into consideration for arriving at subjective satisfaction by the detaining authority which reflects non- application of mind and docu- ments which are unintellligible, which amounts to non-communication of the grounds of detention as envisaged under Section 3(3) of the COFEPOSA Act read with Article 22(5) of the Constitution of India.

(3.) Let me deal with the arguments of the learned counsel for the petitioner that when the detention order was served on the petitioner, the petitioner was in judicial custody and, therefore, to pass a preventive detention order on the ground that if he is enlarged, he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in Such activities shows non-application of the mind of the detaining authority. In Binod Singh V.District Magistrate, Dhanbad AIR 1986 SC 2090.