RAMJOT Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS writ petition in the nature of Habeas Corpus has been filed by Smt. Ramjot, challenging the detention of her son Shri Ghan-shyam under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, (for shoft COFE POSA ACT ).

(2.) IT is alleged in the petition that Shri Ghanshyam was arrested by Shri Ramchandra, Station House Officer, Police Station, Sadar Bazar, Jodhpur on 2-3-1988 and according to the police 3 Gold biscuits bearing foreign marking and two pieces of gold biscuits wrapped in pink paper were recovered from the pant worn by Ghanshyam. IT is further alleged that Shri Ramchandra recorded the statement of Ghanshyam on 2-3-1988 and later he was handed over to the Customs Authorities where he was examined on 3-3-1988. Then Shri Ghanshyam was arrested formally on 4-3-1988 and produced before the learned CJM Jaipur on 5-3-1988. He moved an application for bail before the CJM, Jaipur, which was rejected on 9-3-1988 thereafter he approached the learned Sessions Judge, Jaipur for bail and he was granted bail on 14-3-1988.

(3.) THE second contention raised by the learned counsel for the petitioner is that in pursuance of Article 22 (5) of the Constitution read with Sec. 3 (3) of the COFEPOSA Act, it was incumbent upon the detaining authority that it shall communicate to the detenue the order of detention as soon as may be after the detention but ordinarily not later than 5 days and in circumstances to be recorded not later than 15 days from the date of the detention. THE grounds of detention includes the documents on which reliance has been placed by detaining authority as has been held in 1982 Weekly Law Notes 394. In the present case the statement of Ghanshyam recorded by Shri Ramchandra S. H. O. , Sadar, Bazar, Jodhpur on 2 nd of March, 1988, has not been supplied to the detenue alongwith the grounds of detention nor even on his demand and since this vital document had not been supplied to the detenue the provisions of the Constitution under Art. 22 (5) as also Sec. 3 (3) of the COFEPOSA Act have been violated which has resulted into a loss of proper opportunity to the detenue to make a proper and a effective representation. It has been stated in para 4 of the writ petition that the detenue was taken to the police station immediately after his detention by Shri Ramchandra and his statement was also recorded. In para 4 of the reply it is stated that "the contention of para 4 of the writ petition are admitted, Shri Ramchandra S. H. O. Police Station, Sadar Bazar, Jodhpur had recorded the statement of Shri Ghanshyam soon after the recovery and the same has been relied upon in the grounds of detention. " However, at the time of arguments Shri Joshi vehemently contended that as a matter of fact the statement of the detenue Ghanshyam recorded by Shri Ramchandra S. H. O. police station, Sadar Bazar, Jodhpur was not at all relied upon in the grounds of detention. In this connection he referred to the ground of detention. It is urged by him that only those documents on which the detaining authority has placed reliance while making the order of detention have to be supplied along-with the grounds of detention and it is not necessary that the copies of the whole of the records which had been placed before the detaining authority should be supplied to the detenue. According to him therefore, non supply of the copy of the statement of Ghanshyam dated 2. 3. 1988 does not constitute violation of Art. 22 (5) of the Constitution or Sec 3 (3) of the COFEPOSA Act.