Holding

Exoneration in adjudication proceedings does not nullify a COFEPOSA detention order; the appeal is dismissed.

Summary

The appellant challenged the preventive detention of his brother Bherchand Tikaji Bora under Section 3(1) of COFEPOSA, arguing that the detenu had been fully exonerated in adjudication proceedings under FERA and that this should nullify the detention order. The High Court dismissed the writ, holding that exoneration does not affect a COFEPOSA detention, and the appellant further contended that relevant documents were not supplied, impairing his right to make an effective representation. The Supreme Court examined precedents such as Sadhu Roy and Bhawarlal Ganeshmalji, noting that a discharge or exoneration in criminal proceedings does not automatically bar preventive detention for security reasons. It observed that the authorities had made exhaustive attempts to take the detenu into custody, ultimately issuing a proclamation under Section 7(1)(b) of COFEPOSA. The Court found no infirmity in the High Court's order and rejected the appellant's contentions, dismissing the appeal.

Issues considered

Whether exoneration in adjudication proceedings under FERA can invalidate a preventive detention order under COFEPOSA.
Whether the failure to supply certain documents to the detenu violates the right to make an effective representation under Article 22(5) of the Constitution.
Whether new grounds can be raised at the appellate stage to challenge the detention order.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 3(1), s. 7(1)(b)
Constitution of Indias. Article 22(5), s. Article 226, s. Article 32
Foreign Exchange Regulation Act, 1973s. 37, s. 9(1)(a)

Subjects

preventive detentionCOFEPOSAexonerationadjudication proceedingseffective representationArticle 22(5)FERAproclamationwrit of habeas corpus

Judgment

A MUKESH TIKAJI BORA
v.
UNION OF INDIA AND ORS.

APRIL 11, 2007

B [DR. ARIJIT PASA YAT ANDS. H. KAPADIA, JJ.]

C
COFEPOSA, 1974-S.3(1)-Detention order-Exoneration in
adjudication proceedings-Held, cannot be ground to nullify the order of
detention.
-
On 16.1.1997 residence of detenu was searched by some officers of the
Enforcement Directorate. Then detention order dated 27.8.1998 was passed.
The show cause notice was given to the detenu on 18.1.1999 for contravention
of the provisions of s. 9(1 Xa) of the FERA. The Detenu submitted his written
D explanation on 30.3.1999 and adjudication order dated 29.11.1999 was passed
by the Special Director of Enforcement

Appellant filed the writ petition challenging the detention of his brother,
detenu on the ground that there was no necessity of passing any detention
order as the detenu was exonerated fully in the adjudicating proceedings and
E this aspect of exoneration of the detenu should have been taken note of by the
detaining authority.

High Court dismissed the writ petition holding that exoneration in the
adjudication proceedings cannot be a ground to nullify the order of detention.

F In appeal to this Court, appellant contended that certain documents which
had relevance were not supplied to the detenu and he was, therefore, not in a
position to make an effective representation.

Dismissing the appeal, the Court

G HELD: I. The materials placed by the respondents on record clearly
show that all possible efforts were made to take the detenu to custody but he
successfully managed to evade. Ultimately proclamation was issued under
Section 7 (1) (b) of the COFEPOSA. [Para 12) [29-FJ

2. Though there can be no quarrel with the preposition that in some
H 26
MUKESHTIKAJI BORA v. U.0.1. [PASAYAT, J.] 27

·-.!,
cases new grounds can be permitted to be urged but the factual background A
here is different. (Para 14) (30-B)

Sadhu Roy v. The State of West Bengal, [1975) I SCC 660; Bhawarlal
Ganeshmalji v. The State of Tamil Nadu and Anr., AIR (1979) SC 541; and
Adishwar Jain v. Union ofIndia & Anr., [2006) IO SCALE 553, referred to.
B
3. The first order of detention and the grounds of detention were served
on 23.11.2005. The writ petition was filed on 2.12.2005 under Article 226 of
),. the Constitution of India, 1950 for setting aside the order of detention. In
March, 2006, Writ Petition (Criminal) was filed under Article 32 of the
Constitution for quashing and setting aside the order of detention during the
pendency of Writ Petition before the Bombay High Court. On 26.6.2006, this c
Court disposed of the petition under Article 32 of the Constitution directing
the High Court to dispose of the matter within a. period of one month and that
is how the impugned order dated 6.7.2006 was passed. Looked from any angle,
·order of High Court does not suffer from infirmity. [Para 15) (30-G-H; 31-A)
D
CRIMINAL APPELLATE JURISDICTION: Cirminal Appeal No. 533 of
2007.

From the Judgment and Order dated 06.07.2006 of the High Court of
Judicature at Bombay in Criminal Writ Petition No. 2930 of2005.
E
Vikram Choudhary, Nikhil Jain, Rakesh Dahiya and D. Mahesh Babu for
the Appellant.

Vikas Singh, ASG., T.A. Khan, Shiva Lakshm~ Amrita Narayan, B. Krishna
Prasad and V.N. Raghupathy for the Respondents.
F
The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. I. Leave granted.

2. Challenge in this appeal is to the judgment rendered by a Division
Bench of the Bombay High Court dismissing the Habeas Corpus Petition filed
G
by the appellant. In the writ petition challenge was to the order of detention
dated 27th August, 1998 passed under Section 3(1) of the Conservation of
)'
Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (in short
the 'COFEPOSA ') in respect of one Bherchand Tikaji Bora alias Bharat alias
Bhermal alias Dimple alias Dhayabhai (hereinafter referred to as the 'detenu').
H
28 SUPREME COURT REPORTS [2007] 5 S.C.R.

A 3. The appellant had filed the writ petition challenging the detention of
his brother-Bherchand Tikaji Bora the 'detenu.' Ir-
4. Though several grounds were urged in support of the writ petition
at the time of hearing only two grounds were urged. Firstly (a) with reference
to the facts given in grounds of challenge l(a) to l(f) it was argued that when
B the detenu was exonerated fully in the adjudicating proceeding, then there
was no necessity of passing any detention order and (b) this aspect of
exoneration of the detenu in the adjudicating proceedings should have been
taken note of by the detaining authority. /._

5. The aforesaid two statements were made on the basis of following
c position.
6. The Enforcement Directorate, Mumbai carried out certain search of
the residential premises of one Pravin Popatlal Shah under Section 37 of the
Foreign Exchange and Regulation Act, 1973 (in short the 'FERA'). On 16.1.1997
residence of detenu was searched by some officers of the same Directorate.
D
Then detention order dated 27 .8.1998 was passed. The show cause notice was
given to the detenu on 18.1.1999 for contravention of the provisions of
Section 9(1)(a) of the FERA. The Detenu submitted his written explanation on >
30.3.1999 and adjudication order dated 29.11.1999 was passed by the Special
Director of Enforcement.
E
7. The High Court analysed the position of law laid down by this Court
in several cases and held that it was not a case of unexplained delay in
execution of the order of detention. Further the exoneration in the adjudication
proceedings cannot be a ground to nullify the order of detention. Accordingly
the writ petition was dismissed.
F
8. In support of the appeal learned counsel for the appellant in addition
to what wa5 urged before the High Court submitted that certain documents
which had relevance were not supplied to the detenu and he was, therefore,
not in a position to make an effective representation. The detention order had
also been challenged on the ground that the confessional statement of the
G
detenu was retracted subsequently on 15.7.1994 and hence original confession
allegedly made on 13.7.1994 could not have been used.
'i.
9. Learned counsel for the respondent on the other hand submitted that
not o~ly the original statement but the so called retraction was duly taken
H note of by the detaining authority. The said Authority referred to the retraction
MUKESHTIKAJIBORAv. U.0.1.(PASAYAT,J.] 29

and after its consideration felt that order of detention was necessary. A
10. At this juncture it would be appropriate to take note of what was
stated by this Court in Sadhu Roy v. The State a/West Bengal, [1975] l SCC
660. In that case final police report terminated the criminal proceedings. The
question was whether in such an event order of detention can be passed. B
This Court inter alia observed as follows:

xxx xxx

"What is the impact of a discharge of the accused by the criminal
court based on police reports on the validity of the detention order
against the same person based on the same charge in the context of C
a contention of a non-application of the authority's mind?

The discharge or acquittal by a criminal court is not necessarily
a bar to preventive detention on the same facts for "security" purposes. D
But if such discharge or acquittal proceeds on the footing that the
charge if false or baseless, preventive detention on the same
condemned facts may be vulnerable on the ground that the power
under the MISA has been exercised in a ma/afide or colourable
manner."
E
11. In Bhawarlal Ganeshmalji v. The State a/Tamil Nadu and Anr., AIR
(1979) SC 541 it was observed that where the delay is not only adequately
explained but is found to be the result of recalcitrant and refractory conduct
of the detenu in evading arrest, there is warrant to consider the 'link' not
snapped but strengthened.
F
12. In the instant case the materials placed by the respondents on
record clearly show that all possible efforts were made to take the detenu to
custody but he successfully managed to evade. Ultimately proclamation was
issued under Section 7 (I) (b) of the COFEPOSA.

13. Another point which was emphatically urged was that new ground
G
~ which exists should be taken into consideration. It is stated that though
period of detention may be over in order to avoid civil liability that may be
permitted to be urged. Specific reference in this regards is made to Annexures
P-10 to P-14 which are stated to be vital and material documents. Two of them
are the original statement of confession and the subsequent retraction and H
30 SUPREME COURT REPORTS [2007] 5 S.C.R.

A the show cause notice dated 3.7.1995 issued to the detenu by dispensing
authority and replies dated 18.12.1995 and 17.1.1996 filed by the detenu J..
stating that he was not 'Dimple'.

14. Though there can be no quarrel with the preposition that in some
cases new grounds can be permitted to be urged but the factual background
B here is different. In Adishwar Jain v. Union ofIndia & Anr., [2006] 10 SCALE
553 it was observed inter alia as follows:

"Although learned Additional Solicitor General may be correct in his
submissions but ordinarily we should not exercise our discretionary
jurisdiction under Article 136 of the Constitution of India by allowing
c Appellant to raise new grounds but, in our opinion, we may have to
do so as an order of detention may have to be considered from a
different angle. It may be true that the period of detention is over. It .
may further be true that Appellant had remained in detention for the
entire period but it is one thing to say that the writ of Habeas Corpus
D in this circumstances cannot issue but it is another thing to say that
an order of detention is required to be quashed so as to enable the
detainee to avoid his civil liabilities under SAFEMA as also protect
his own reputation.

It is a trite law that all documents which are not material are not
E necessary to be supplied. What is. necessary to be supplied is the
relevant and the material documents, but, thus, all relevant documents
must be supplied so as to enable the detenu to make an effective
representation which is his fundamental right under Article 22(5) of
the Constitution of India. Right to make an effective representation is
also a statutory right. (See: Sunila Jain v. Union of India and Anr.,
F [2006J 3 sec 321)"

15. Though in that case it was noted that some relevant documents were
not supplied, in the instant case the position is not so. No arguments were
advanced before the High Court relating to these documents though they
G were a part of the record before the High Court. The first order of detention
and the grounds of detention were served on 23 .11.2005. The writ petition was
filed on 2.12.2005 under Article 226 of the Constitution oflndia, 1950 (in short
the 'Constitution') for setting aside the order of detention. In March, 2006, '4
Writ Petition (Criminal) No. 146 of 2006 was filed under Article 32 of the
Constitution for quashing and setting aside the order of detention during the
H pendency of Writ Petition (Criminal) No. 2930 of2005 before the Bombay High
MUKESH TIKAJI BORA v. U.0.1. [PASAYAT, J.] 31
Court. On 26.6.2006, this Court disposed of the petition under Article 32 of A
the Constitution directing the High Court to dispose of the matter within a
period of one month and that is how the impugned order dated 6.7.2006 was
passed. Looked at from any angle the order of the High Court does not suffer
from any infirmity and the appeal deserves dismissal which we direct.

D.G. Appeal dismissed. B

-~