DEEPESH MAHESH ZAVERI Vs. UNION OF INDIA

JUDGEMENT

(1.) HEARD all the learned Counsel; Shri Kotwal for the petitioner, Shri Agrawal for respondents No. 1 and 2 and Smt. Tahilramani for respondents Nos. 3 and 4. The question of law which arises for our consideration in this petition under Article 226 of the Constitution is, whether successive petitions can lie to the High Court under Article 226 seeking to challenge an order of preventive detention after the first petition was dismissed on merits and where no fresh ground or evidence has become available after the decision of the first petition and the ground alleged in the second petition was available to the detenu in the first petition ?

(2.) THIS is a one page petition under Article 226 of the Constitution filed by the son of the detenu Mahesh Kantilal Zaveri, who was detained under the order dated 5th October 1995 passed by the second respondent - detaining authority. Shri K. L. Verma, Joint Secretary (COFEPOSA) to the Government of India, who was specially empowered under section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, the COFEPOSA ). The order has been passed since the detaining authority was satisfied with respect to the detenu Mahesh Kantilal Zaveri that, with a view to preventing him in future from acting in any manner prejudicial to the augmentation of foreign exchange, it was necessary to make the order detaining him in custody in the Central Prison, Pune. In execution of the said order, the detenu was detained on the 10th October 1995 and since the period of detention was one year, he has been released from detention on 9th October 1996. The only ground of challenge in this petition is that the petitioners representations dated 6th December and 15th December 1995, addressed to the Advisory Board, were rejected by the Central Government on 25th January 1996. It is, therefore, alleged that there was delay on the part of the Central Government in considering the said representations. In fairness to Shri Kotwal, it must be stated that in view of the affidavit-in-reply filed by Shri K. L. Verma, Joint Secretary, this facet of the contention has not been argued before us and was given up and what has been pressed is the second facet of the only contention raised in para 4 (i) of the petition that the said representations were not considered by the detaining authority and there was no communication of the decision by the detaining authority. It may be appropriate to reproduce the said contention as under :--

(3.) IN respect of the detention under the order dated 5th October 1995, the same petitioner viz. , Deepesh, son of the detenu Mahesh Zaveri had filed Criminal Writ Petition No. 1238 of 1995 on November 20, 1995. That petition was admitted in this Court on November 22, 1995. The Advisory Board Meeting was held on 15th December 1995 and it is stated that opinion was rendered by the Advisory Board on 23rd December 1995. During the pendency of the first petition, the petitioner filed Criminal Application No. 202 of 1996 on 29th January 1996 for leave to amend which was granted on 31st January 1996 and the ground added was that there was no confirmation of the detention within a period of three months as required by Article 22 (4) of the Constitution read with Clause (f) of section 8 of the COFEPOSA which rendered the continued detention illegal. After the said amendment was carried out, Criminal Application No. 923 of 1996 was filed by the petitioner in the first petition on 12th April 1996 for parole. During the pendency of this parole application, the petitioners Counsel Shri Kotwal wrote to the Deputy Director, Directorate of Enforcement, Bombay Zonal Unit, Bombay, on 18th April 1996 calling upon him to inform the date on which three sets of documents relied upon were sent to the Advisory Board. This information was stated to be necessary to find out whether the Advisory Board had sufficient time to consider the case of the detenu. Copy of this letter was forwarded to Shri Agrawal, Counsel for the respondents. In reply to this letter dated 18th April 1996, Shri K. L. Verma, Joint Secretary, filed his affidavit in the first petition setting out the details and contended that the three sets of documents were forwarded to the Advisory Board well in advance of the scheduled meeting and the Advisory Board had sufficient time to consider the said material and the case of the detenu.