IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : COFEPOSA. Writ Petition (Criminal) No.1484 of Judgment reserved on: November 20, 2006

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1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : COFEPOSA Writ Petition (Criminal) No.1484 of 2006 Judgment reserved on: November 20, 2006 Judgment delivered on: December 01, 2006 Suman Aggarwal W/o Shri Ashwani Aggarwal (Detenu detained in Central Jail, Tihar) R/o A-1/330, Paschim Vihar New Delhi...Petitioner Through Mr. R.K. Anand, Sr. Advocate with Mr. Farook Mr. Razack, Mr. Vikas Pahwa, Mr. Faisal Farook, Mr. Sri Bhagwan Shrama, Ms. Shivani Lal, Mr. Manoj Ohri and Ms. Debonita Das, Advs. Versus 1. Union of India service through Secretary, Ministry of Finance Department of Revenue North Block, New Delhi 2. Joint Secretary Government of India, Ministry of Finance Department of Revenue Central Economic Intelligence Bureau 6th Floor, B Wing, Janpath Bhawan Janpath, New Delhi 3. Superintendent Central Jail, Tihar, New Delhi...Respondents Through Mr. P.P. Malhotra, Addl. Solicitor General with Mr. Baldev Malik, Adv. for R-1

2 Mr. Satish Aggarwal with Ms. Pooja, Adv. for R2 MADAN B. LOKUR, J. 1. The Petitioner is the wife of Ashwani Aggarwal who has been detained by an order dated 28th December, 2005 passed under the provisions of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (for short COFEPOSA). 2. It appears that the detention order could not be served upon the detenu immediately but he nevertheless came to know about it and challenged the detention order by filing a writ petition in the High Court of Punjab and Haryana. That writ petition was withdrawn on 23rd May, 2006 with liberty to file a writ petition in this Court. Leave and liberty was granted. 3. On 10th June, 2006, the detenu was apprehended by the officers of the Directorate of Revenue Intelligence (for short DRI) and officers of the police attached to the Special Cell, New Delhi. He was then detained in Central Jail, Tihar where the order of detention as well as the grounds of detention were served upon him. 4. The case made out by the DRI is that the detenu would import goods free of duty in the domestic tariff area and substitute them with inferior quality/junk and old goods which were then exported to Singapore and Hong Kong. By this method of illegal diversion of goods, the detenu was avoiding the payment of customs duty. 5. On 7th September, 2005, surveillance was kept on the detenu and goods that were imported duty free and which ought to have been taken to the Noida Special Economic Zone were in fact diverted and taken to the residence of the detenu. On examination, these goods were found to be high value computer parts having a market value of about Rs.1.80 crores while the value of the goods declared in the bill of entry were shown as Rs.6.76 lakhs CIF. The goods were seized and a panchnama drawn up and thereafter investigations were conducted which led to the passing of the impugned order. 6. Learned counsel for the Petitioner raised several arguments during the hearing of the writ petition but we are dealing with only one of them, namely, non-supply of documents relied upon in the grounds of detention. We are of the view that non-supply of these documents would vitiate the preventive detention of the detenu. 7. The list of documents relied upon in the grounds of detention shows that at item No. 40, legible copies of bills of entry have been supplied to the detenu. The grievance made out on his behalf is that the bills of entry contain some information on the facing page as well as on the reverse thereof. It was contended that the detenu was only supplied with the facing page but not the reverse of the bills of entry.

3 8. We asked the learned Additional Solicitor General appearing for the Respondents to show us a few sample bills of entry that were seized and relied upon and we found that while in respect of some of them there is no endorsement or any other significant writing on the reverse of the bill of entry, in respect of at least one of them there are endorsements and other information contained on the reverse of the bill of entry. According to learned counsel for the detenu, the reverse of the bill of entry would show that the imported goods are required to be escorted to the Noida Special Economic Zone by an officer of the customs and, therefore, it was not possible for him to have diverted the goods to his residential premises. That may be so, but we are not required to go into the merits of the controversy between the parties because we are told that a prosecution is pending against the detenu in the court of competent jurisdiction. What we are required to consider is whether there has been a non- supply of material documents to the detenu which would vitiate the order of preventive detention. 9. Learned Additional Solicitor General relied upon Kamarunnissa v. Union of India and Anr., (1991) 1 SCC 128 wherein the Supreme Court held (in paragraph 14 of the Report) that mere reference to documents by way of completing the narration of facts cannot entitle the detenu to claim copies of such documents. In that case, there was a reference to search authorisations and the High Court had taken the view that non-supply of search authorisations would not vitiate the order of detention. This view was upheld by the Supreme Court. It was also held No hard and fast rule can be laid down in this behalf but what is essential is that the detenu must show that the failure to supply documents before the meeting of the Advisory Board had impaired or prejudiced his right, however slight or insignificant it may be. 10. The contention of learned Additional Solicitor General was that the bills of entry were merely mentioned by way of background facts and did not form the basis of the order of detention. We do not agree with this view in as much as the order of detention specifically relies upon the bills of entry and in fact the allegation of underinvoicing is based on the bills of entry. It is, therefore, not correct on the part of learned Additional Solicitor General to say that the bills of entry are mentioned only by way of background facts. Moreover, the Detaining Authority has himself relied upon these bills of entry in the grounds of detention and as such we do not think the learned Additional Solicitor General is right in his contention that these documents were only background material utilized for preventive detention. 11. Learned Additional Solicitor General relied upon Radhakrishnan Prabhakaran v. State of T.N. and Ors., (2000) 9 SCC 170 in which the Supreme Court held We may make it clear that there is no legal requirement that a copy of every document mentioned in the order shall invariably be supplied to the detenu. What is important is that copies of only such of those documents as have been relied on by the detaining authority for reaching the satisfaction that preventive detention of the detenu is necessary shall be supplied to him.

4 Rather than supporting the contention of learned Additional Solicitor General, we are of the view the above observation fortifies what we have concluded. The admitted position is that the Detaining Authority had mentioned the bills of entry in the relied upon documents and that is why they should have been supplied to the detenu. 12. Learned Additional Solicitor General also relied upon J. Abdul Hakeem v. State of T.N. and Ors., (2005) 7 SCC 70. We find that this decision relies upon Kamarunnissa and Radhakrishnan Prabhakaran apart from M. Ahamedkutty v. Union of India, (1990) 2 SCC 1. This decision does not lay down any different principle of law. The Supreme Court, however, emphasised that the crux of the matter would lie in the answer to the question whether the detenu's right to make a representation against the order of detention is hampered by the non- supply of a particular document. In our opinion, there can hardly be any doubt that if any document relied upon by the Detaining Authority is not supplied to the detenu, it will certainly hamper his right to make a representation, let alone an effective representation. 13. Reference was also made to Union of India and Anr. v. Chaya Ghoshal (Smt.) and Anr., (2005) 10 SCC 97, particularly paragraph 8 thereof to explain the purpose and intent of preventive detention. Of course, there cannot be any quarrel with the view expressed by the Supreme Court in this regard. It has been emphasised by the Supreme Court, time and again, that however necessary the requirement of preventive detention may be, it has to be in accordance with the constitutional requirements. 14. Reference made by the learned Additional Solicitor General to Sunila Jain v. Union of India and Anr., (2006) 3 SCC 321 is inapposite. In that case, what was considered by the Supreme Court in paragraph 19 of the Report was the effect of non-placing of relevant or vital documents before the Detaining Authority. That question does not arise in the present case and we find the cited authority to be not relevant. 15. In Usha Agarwal v. Union of India and Ors., 2006 (11) SCALE 173, the Supreme Court dealt with an argument where several sheets among the copies of documents supplied by the detenu were illegible and this came in the way of the detenu making an effective representation for his release. The Supreme Court re-emphasised the necessity of supplying legible copies of documents to the detenu. In the case that we are concerned with, the situation is even worse. It is not as if legible copies have not been supplied, but copies have not at all been supplied of the reverse of the bills of entry. In that sense, the present case with which we are concerned with stands on a far stronger footing than Usha Agarwal. 16. In Shalini Soni and Ors. v. Union of India and Ors., (1980) 4 SCC 544, the Supreme Court relied upon Icchu Devi Choraria v. Union of India, (1980) 4 SCC 531 and Khudiram Das v. State of West Bengal, (1975) 2 SCC 81 and while interpreting Article 22 (5) of the Constitution, it was observed that the Article has two facets, namely, (i) communication of the grounds on which the order of detention has been made; and (ii) opportunity of making a representation against the order of detention. Communication of the order of detention means not only that the detenu is to be informed of the inferences

5 of fact but of all the factual material that has led to the inferences of fact and, therefore, grounds of detention do not mean mere factual inferences but they mean factual inferences plus factual material which led to such factual inferences. If a document relied upon by the Detaining Authority is not supplied to a detenu, there is no communication of the grounds of detention and if there is no communication of the grounds of detention, there is no question of the detenu being enabled to make an effective or purposeful representation against the preventive detention. 17. In Lallubhai Jogibhai Patel v. Union of India and Ors., (1981) 2 SCC 427, the Supreme Court again referred to Icchu Devi Choraria and reiterated the principle laid down therein and quashed the detention order on the ground that the Detaining Authority had failed to supply, despite the request of the detenu, all documents that were relied upon for passing the order of detention. 18. In Mohd. Zakir v. Delhi Administration and Ors., (1982) 3 SCC 216, the Supreme Court reiterated the principle that the documents relied upon by the Detaining Authority must be supplied to the detenu pari passu. Again, reference was made to Icchu Devi Choraria. 19. Recently, in Mrs. Seematti v. Secretary, Govt. of T.N., Home Deptt. and Ors., 2005 CriLJ 738, the Madras High Court dealt with the non-supply of one side of a chit of paper to the detenu. The High Court held that both sides of the chit of paper ought to have been supplied to the detenu to enable him to make an effective representation and since he was not given a complete copy of the document relied upon, in spite of a request, the detention was not in accordance with law. 20. As we have already mentioned, the bills of entry were vital documents relied upon by the Detaining Authority, as mentioned by him in his detention order, which is accompanied by the list of documents relied upon. Failure to supply the reverse of the bills of entry even in one such case is enough to vitiate the detention order since it is not a communication of the grounds of detention to the detenu and in the absence of any communication thereof, the detenu is prevented from making an effective representation. 21. Under the circumstances, we quash the order of preventive detention dated 28th December, 2005 and issue a writ of habeas corpus directing the release of the detenu forthwith. The detenu be released from custody unless he is required in some other case. Sd/- Madan B. Lokur, J Sd/- Aruna Suresh, J

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