LexADISHWAR JAIN versus UNION OF INDIA AND ANR.
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• ,. ADISHW AR JAIN v. UNION OF INDIA AND ANR. OCTOBER 19, 2006 [S.B. SINHA AND DAL VEER BHANDARI, JJ.] Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976-Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974-Section 3-Detention order against detenue for smuggling of goods-Detention period over and detenue re/eased- Proceedings under SEFEMA against detenue-Quashing of, detention order, to avoid civil liabilities-Held: There was unexplained delay in passing detention order, material documents were not placed before the Detaining Authority and the material documents were not supplied to the detenue- A B c· Thus, detention order quashed. D Appellant-Managing Director of a company was entitled to credits under the Duty Entitlement Pass Book Scheme upon export of alloy steel. He allegedly misdeclared the value and description of goods upon procuring fake and false bills through one P. Appellant was arrested on 13.10.2003 and he was discharged on bail on 6.01.2004. The proposal for detention was sent on E 25.06.2004 which was approved on 02.12.2004. On 20.12.2004, the authorities of Directorate of Revenue Intelligence stated that activities of the appellants after I I.I0.20Q3- were not under scrutiny and requested the Bank to defreeze his bank accounts. Thereafter, on 05.04.2005, detention order was passed under the Conservation of Foreign Exchange and Prevention of Smuggling F Activities Act, 1974. Appellant filed writ of Habeas Corpus challenging the detention order on the ground of unexplained delay in passing the detention order. High Court dismissed the petition. Letters patent appeal was 11lso dismissed. Thereafter, proceeding under Smugglers and Foreign Exchange G Manipulators (Forfeiture of Property) Act, 1976 was initiated against the appellant. Hence, the present appeal challenging the legality or validity of the detention order on the grounds of non-placement of vital material documents before the detaining authority; non-supply of documents relied on or referred 801 H 802 SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R. A to in the detention order; and non-application of mind on the part of the detaining authority. Meanwhile, the period of detention was over and the appellant was released from custody. Allowing the appeal, the Court B HELD: 1.1. If delay is sufficiently explained, the same would not be a ground for quashing an order of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, but in the instant case a major part of delay remains unexplained. The fact that the proposal for detention was made on 02.12.2004, the order of detention was passed after four months cannot be understood. In the meantime on 20.12.2004, the C authorities of the DRJ had clearly stated that transactions after 11.10.2003 were not under the scrutiny and all the bank accounts of the appellant were defreezed. The said documents were material. Therefore, it was difficult to appreciate why order of detention could not be passed on the basis of the materials gathered by them. (806-G-H; 806-B-C; 806-F-H) D 1.2. Ordinarily this Court should not exercise discretionary jurisdiction under Article 136 of the Constitution of India by allowing appellant to raise new grounds but, this may have to be done 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 E detention for the entire period but it is one thing to say that the writ of Habeas Corpus in this circumstance cannot be issued 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 Smugglers and Foreii\n Exchange Manipulators (Forfeiture of Property) Act, 1976 as also to protect his own F reputation. (808-H; 809-A-B( 1.3. With regard to non-placement of material documents before the detaining authority, respondent contended that the appellant obstructed the proceedings by initiating various civil litigations. But, indisputably, those documents involving the civil court proceedings were not placed before the G detaining authority. If the same had not been done, not only the delay, in issuing the order of detention stood unexplained but also thereby the order itself would become vitiated. Furthermor
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