PREM PRAKASH Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner was served with the preventive detention order under Section 3(1) of the Consei ration of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to''COFEPOSA") passed by the respondent on 2.5.1994 on the same day while he was in judicial custody. He was also served with the grounds of detention and list of relied upon documents in pages running into 1780 pages on 5.5.1994.

(2.) Mr. Trilok Kumar, Learned counsel for the petitioner has argued that the petitioner was placed under arrest on 7.4.1994 and was remanded to judicial custody on 8.4.1994 and the detention order was served upon him on 2.5.1994 while he was in judicial custody and has challenged that there was no material before the detaining authority when the detenu was already in judicial custody to arrive at subjective satisfaction that nothing prevents him to avail remedies available to him under the law for getting himself released from the judicial custody. Mr.Kumar has stated that detaining authority had taken note of the fact that detenu has filed bail application dated 5.4.1994 which stood rejected on 22.4.1994 by Additional Chief Metropolitan Magistrate New Delhi and no bail application was filed or was pending after the above rejection and, therefore, the subjective satisfaction of holding that there was likelihood of the petitioner's release from the judicial custody and non- consideration of vital aspect shows non-application of mind and the detention order is passed on nonprobity or existing material as there was no imminent or likely release of the petitioner in near future. Another arguments advanced by learned counsel for the petitioner is that certain relied upon documents consist of documents in 'English' and 'Hindi', there were certain other documents which bore certain endorsement in 'Gurmukhi' and 'Urdu' without their translation in 'Hindi' language known to the detenu, were not supplied to him. On the basis of this submission, Mr.Kumar has argued that there was non- compliance of the provisions of Section 3(3) of the COFEPOSA Act read with Article 22(5) of the Constitution of India. He has further argued that the petitioner has been supplied large number of documents which are claimed to have gone into for formation of subjective satisfaction of the detaining authority to detain the detenu. Those documents are wholly irrelevant documents and, therefore, that show non- application of the mind of the detaining authority. He has also assailed the detention order on the ground that documents, which were supplied, were not legible as the documents were voluminous the detenu pointed certain documents as illegible on 5.5.1994 itself and on 6.5.1994 detenu was served with a fresh set of documents but it was again found that certain documents were illegible and as bad as the documents supplied earlier to him. The petitioner has annexed with the petition copies of such documents as 'Annexure-E-1' to 'Annexure-E-5'. Learned counsel for the petitioner has argued that non-supply of these documents amounts to infraction of the provisions of Article 22(5) of the Constitution of India as the detaining authority failed to communicate the entire relied upon material which is part and parcel of the ground of detention within the statutory period and this has rendered the detention order invalid. Keeping in view the voluminous nature of documents, there was no undue delay in disposal of the representation of the petitioner so as to prevent him from making an effective representation. Supreme Court in Mst.M S.Umma Saleema V.B.B.Gujral & anr. AIR 1981 SC 1191 has held that 1-

(3.) Mr.Kumar has also averred that the legible copies of these documents were received on 15.6.1994 much beyond the statutory period.