RAVINDER SINGH ALIAS KAKA Vs. UNION OF INDIA

JUDGEMENT

(1.) PETITIONER was detained under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 on the ground that he indulges in prejudicial activities. The allegations were that the petitioner used to deal in the gold biscuits and foreign currency, and thereby used to indulge in smuggling activities. Detention order was passed on 25th July, 1996. The petitioner made representation to the detaining authority on 22.10.1996.

(2.) IN this Court, the counsel for the petitioner submitted that as per the birth certificate Ex.P-3 the date of birth of the petitioner is 27.8.1980 and, therefore, on the date of his arrest he was below 16 years and was Juvenile Offender. On this premise, he submitted that he should not have been detained under COFEPOSA Act. The other contention was that though he demanded the copy of certain documents, there were not supplied and that has materially affected his defence.

(3.) THE question as to the reliability of the birth certificate should have been decided by the detaining authority. But that could not be done by the detaining authority because the said birth certificate had not been placed before it. In that respect my attention was also invited to the reply, Clause 4(a) and (b) where it is clearly stated by Shri K.L. Verma, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, that since the birth certificate was found to be fictitious there was no question of putting it before the detaining authority for its consideration. In other words, he admitted that the detaining authority had no opportunity to consider the reliability of the birth certificate. As such, it was for the detaining authority to form the opinion as to the reliability of the documents produced on behalf of the detenu. In that respect, I find fortified by ruling in case of Ayya alias Ayub v. State of U.P. and another, 1989 CAR 29 (SC). In that case Their Lordships of the Supreme Court were considering a case wherein certain telegram sent by the detenu were taken in the custody for some cognizable offence. However, these telegrams were never placed before the detaining authority for his satisfaction while making the detention order. Their Lordships were of the view that such documents that would materially affect the decision of the detaining authority should have been placed before it for consideration. The detention, was therefore, held to be not legal. In this case, similar situation arises in respect of birth certificate. If the authorities concerned had collected the material to show that a certificate was fabricated and not reliable, that material should have been placed before the detaining authority. In the reply filed by Mr. K.L. Verma it is indicated that an inquiry with the Municipal Council, Amritsar, revealed that in the register there is no entry of Ravinder Singh (petitioner) in the municipal record. Such letter received from the Municipal Corporation, Amritsar, has not been attached with the reply. At any rate, the reliability of the birth certificate is a matter to be considered by the detaining authority. Since that material has not been placed before the detaining authority for his consideration, the decision arrived at without consideration of such material is illegal.