ASHOK KUMAR versus UNION OF INDIA & ORS.

Citation: [1988] 2 S.C.R. 800 · Decided: 27-01-1988 · Supreme Court of India · Bench: G.L. OZA · Disposal: Appeal(s) allowed

Judgment (excerpt)

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ASHOK KUMAR 
V. 
UNION OF INDIA & ORS. 
JANUARY 27, 1988 
[G.L. OZA AND B.C. RAY, JJ.] 
Constitution of India, 1950, Articles 22(5) and (6). 
Conservation of Foreign Exchange and Prevention of Smuggling 
Activities Act, 1974. Section 3. Detention Order-Certain documents 
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though placed before the Detaining Authority for consideration not 
supplied to detenu-Effective representation could not be submitted by 
detenu-Detention order-Quashed. 
The appellant was arrested and detained on 2 lst March, 1987 
pursuant lo an order of detention made under s. 3(1) of the Conserva-
D lion of Foreign Exchange and Prevention of Smuggling Activities Act, 
1974. He was served with the grounds of detention by the Detaining 
Authority. In the grounds it was stated that the appellant had been 
indulging in illegal sale and purchase of foreign currency, and also in 
the sale and purchase of gold of foreign origin on a large scale, and that 
in three premises connected with the appellant search was carried out 
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on lOth December, 1986 under s. 33 of the Foreign Exchange Regula-
tion Act, 1973. 
On 61h April, 1987 the appellant made two representations; one to 
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the Detaining Authority-the second respondent, and another to the 
Central Government-the first respondent. In these representations the 
appellant stated that he had no concern whatsoever as regards the~ · 
premises where search was carried out, and US $ and primary gold 4 
were recovered as the said premises did not belong to him hut belonged 
to his sister-in-law, and that if the relevant documents on the basis of 
which the detaining authority came to its subjective satisfaction are not 
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given it would not he possible to make any effective representation. On 
2nd April, 1987 the appellant also made a representation before the 
Advisory Board. 
The appellant was produced before the Advisory Board on 29th 
April, 1987 and the Board heard the appellant in respect of his re-
H . presentation. He received a communication dated 7th May, 1987 from 
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ASHOK KUMAR v. U.0.1. 
801 
respondent No. l stating that his detention had been confirmed with 
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effect from 2 lst March, 1987 for a period of one year. 
The appellant challenged the order of detention in a writ petition 
and also prayed for quashing of the said order. It was contended on his 
behalf: (1) that the grounds of detention were supplied on 2lst March, 
1987 whereas the vital docu~ents were supplied as late as on 24th 
April, 1987 and that this was a clear infringement of the provisions of 
s. 3(3) of the COFEPOSA Act. (2) That the appellant could not make an 
effective representation against the order of detention in accordance 
with the mandatory provisio11s of Article 22(5) of the Constitutioq of 
India. The order of detention was also challenged on the ground: that 
the order of confirmation of detention did not give any indication as to 
why the Government had specified or determined the maximum period 
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of detention of one year, tha! there had been an inordinate delay in 
considering the representation dated 6th April, 1987, that it was dis-
posed of by the Central Government on 29th April, 1987, and that this 
delay of 23 days had not been satisfactorily explained. This unusual 
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delay in the disposal of the representation also rendered the order of 
detention bad. 
The writ was contested by the first and second respondents by 
submitting in their counter affidavits that at the time of the search of 
the premises several personal documents of the detenu like driving 
licence, his and his wife's bank passbooks, HUF passbooks, account 
books were seized from the searched premises, and that in pursuance of 
his representation dated 6th April, 1987 the detenu was supplied with 
more documents numbering 150 pages on 24th April, 1987 although the 
same had not been relied upon in forming the subjective satisfaction of 
.,..the Detaining Authority. 
The High Court dismissed the writ petition in view of the affidavit 
filed by the Detaining Authority-Respondent No. 2 that all the docu-
ments seized though placed bel"ore the detaining authority he did not 
rely on them in forming his subjective satisfaction in making the order 
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of detention, and as such the non-supply of certain documents seized 
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from the premises after search to the detenu along with the grounds of 
detention cannot be said to amount to an infringement of the provisions 
of Ar

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