DEEPESH MAHESH ZAVERI Vs. UNION OF INDIA

JUDGEMENT

(1.) HEARD all the learned counsel; Shri Kotwal for the petitioner, Shri Agrawal for respondents No.1 & 2 and Smt. Tahilramani for respondents No.3 & 4. The question of law which arises for our consideration in this Petition under Article 226 of the Constitution is, whether successive petitions can lie to the High Court u/art. 226 seeking to challenge an order of preventive detention after the first petition was dismissed on merits and where no fresh ground or evidence has become available after the decision of the first petition and the ground alleged in the second petition was available to the detenu in the first petition ?

(2.) THIS is a one page Petition u/art. 226 of the Constitution filed by the son of the detenu Mahesh Kantilal Zaveri, who was detained under the Order dated 5th October 1995 passed by the second respondent - detaining authority. Shri K. L. Verma, Joint Secretary (COFEPOSA) to the Government of India, who was specially empowered under section 3 (1) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (for short, the COFEPOSA ). The order has been passed since the detaining authority was satisfied with respect to the detenu Mahesh Kantilal Zaveri that, with a view to preventing him in future from acting in any manner prejudicial to the augmentation of foreign exchange, it was necessary to make the order detaining him in custody in the Central Prison, Pune. In execution of the said order, the detenu was detained on the 10th October 1995 and since the period of detention was one year, he has been released from detention on 9th October 1996. The only ground of challenge in this Petition is that the petitioner's representations dated 6th December and 15th December 1995, addressed to the Advisory Board, were rejected by the Central Government on 25th January 1996. It is, therefore, alleged that there was delay on the part of the Central Government in considering the said representations. In fairness to Shri Kotwal, it must be stated that in view of the affidavit-in-reply filed by Shri K. L. Verma, Joint Secretary, this facet of the contention has not been argued before us and was given up and what has been pressed is the second facet of the only contention raised in para 4 (i) of the Petition that the said representations were not considered by the detaining authority and there was no communication of the decision by the detaining authority. It may be appropriate to reproduce the said contention as under :- 4.Being aggrieved by the said Order, this Petition is filed on fresh grounds which were neither urged nor decided in the said earlier Petition. (i)The representations dated 6-12-95 and 15-12-95; which were addressed to the Advisory Board were rejected by the Central Government on 25-1-96 (Annex-E ). The delay in consideration of the said representations by the Central Government and their non-consideration and the non-communication of the reply by the detaining authority also is violative of Art. 22 (5)". Before considering this contention, it is necessary to refer to the preliminary objection raised by Shri Agrawal on behalf of the contesting respondents that, having regard to the dismissal of the first Petition, on 20-07-1996, a second Petition u/art. 226 by the same detenu on a ground which was very much available to him at the time of hearing of the first Petition is not maintainable. A few relevant facts would be necessary to appreciate the contentions raised before us.

(3.) THE first Writ petition was finally disposed of on 24th July 1996. Six contentions were raised at the hearing of the said Petition by the learned Counsel Shri Karmali. THEy were as under :- (i) THE detenu was taken in detention on 10-10-1995 and the order of confirmation was issued on 10-01-1996 and was served on the detenu on 13-01-1996. Since the period of three months had elapsed before 10-1-1996, the continued detention was in violation of clause (4) of Article 22 of the Constitution of India and, therefore, the confirmation was bad in law. This contention has been considered in paragraphs 5 to 15 of the Judgment in the first Writ Petition. (ii) THEre was not enough time for the detaining authority to consider the several documents that were placed before him before issuing the order of detention on 5th October 1995 and hence, there was non-application of mind on the part of the detaining authority because of shortage of time. This contention has been considered in para 16 of the Judgment. (iii) THE pre-detention representation made by the detenu on the 5th October 1995 to the detaining authority was not considered by the detaining authority and this violated the guarantee enshrined in clause (5) of Article 22 of the Constitution. This contention has been considered in paragraphs 17 & 18 of the Judgment. (iv) Non-consideration of the prior detention order issued on the 3rd June 1991, which was passed with a view to preventing the detenu from indulging in smuggling activities in respect of which he had obtained an ad-interim stay from the Calcutta High Court on 21st June 1991, which was only operative for a period of one week, after which it was not continued. This contention has been considered in paragraph 19 of the Judgment. (v) THE annexure to the letter dated 22nd July 1995 sent by the petitioner to the Deputy Director of Enforcement, Bombay, was not placed before the detaining authority. This contention has been considered in paragraph No.20 of the Judgment. (vi) Some documents furnished to the detenu alongwith the grounds of detention contained Gujarathi writings and were not intelligible to the detaining authority though they were intelligible to the detenu. For instance, after the word "ro" in Devanagri script, it was mentioned in brackets in English "cash". THE word "ro" in Devanagri script was to suggest "rokad" which means 'cash' which was mentioned in English. This contention has been considered in paragraph 21 of the Judgment in the first Petition.