1999 (9) TMI 832 - SC - Customs

Whether the statements of the occupants of the vessel recorded under section 108 of the Customs Act having formed the sole basis for the subjective satisfaction of the detaining authority for the order of detention and those very persons having retracted non-consideration of the retraction vitiates the order of detention itself? Held that - Appeal dismissed. The High Court in the case in hand did not accept the aforesaid contention on the ground that there was no material before the detaining authority that there has been retraction of the statements made by those persons who had earlier been examined under section 108. We need not go into this question in the case in hand inasmuch as by the date of issuance of the order of detention those persons have made a further statement indicating that the original statements made by them under section 108 of the Customs Act were correct and not the retracted statements they had made and this fact was before the detaining authority when he issued the order of detention under section 3(1) of the COFEPOSA Act. This being the position it is difficult for us to accept the contention of Mr. Kotwal that the satisfaction of the detaining authority gets vitiated for non-consideration of the relevant material. In our opinion the aforesaid submission in the facts and circumstances of the present case is devoid of any force and accordingly reject the same.

Issues Involved:
1. Infringement of Constitutional Right under Article 22 due to non-informing of right to representation.
2. Inordinate delay in the execution of the detention order.
3. Validity of the detention order when the detenue was already in custody.
4. Non-consideration of retracted statements as the basis for detention.

Issue-wise Detailed Analysis:

1. Infringement of Constitutional Right under Article 22 due to non-informing of right to representation:
The appellant contended that the detenue was not informed of his right to make a representation to the authority issuing the declaration under section 9(1) of the COFEPOSA Act, infringing his constitutional right under Article 22. The Court acknowledged that the right to make a representation is a valuable right under Article 22. The Court cited several precedents, including the Full Bench decisions of the Bombay and Delhi High Courts and the Supreme Court's rulings in Shibapada Mukherjee v. State of West Bengal and Kamleshkumar Ishwardas Patel v. Union of India. The Court concluded that the authority issuing a declaration under section 9 must inform the detenue of his right to make a representation, and failure to do so infringes the constitutional right, rendering the declaration invalid and the continued detention illegal. However, the initial order of detention under section 3(1) remains valid despite the infraction.

2. Inordinate delay in the execution of the detention order:
The appellant argued that the delay in executing the detention order from 5-2-1992 to 13-8-1993 rendered the detention invalid. The Court examined the facts and found that the delay was due to the detenue evading execution and was beyond the control of the detaining authority. The Court referred to the affidavit indicating that the detaining authority reconsidered the necessity of the detention order upon learning of the detenue's arrest in another case. The Court found the explanation for the delay satisfactory and upheld the validity of the detention order.

3. Validity of the detention order when the detenue was already in custody:
The appellant contended that the detention order should not have been executed while the detenue was already in custody. The Court referred to the affidavit, which indicated that the detaining authority was aware of the detenue's custody and considered the possibility of his release on bail before executing the detention order. The Court distinguished this case from Binod Singh v. District Magistrate, where the detaining authority had not considered the detenue's custody. The Court concluded that the detaining authority had applied its mind to the relevant material and upheld the validity of the detention order.

4. Non-consideration of retracted statements as the basis for detention:
The appellant argued that the detention order was based solely on the statements of the vessel occupants recorded under section 108 of the Customs Act, which were later retracted. The Court noted that the detaining authority was not aware of the retraction at the time of issuing the detention order. Additionally, the same persons had made further statements affirming the correctness of their original statements under section 108. The Court found that the detaining authority's satisfaction was not vitiated by the non-consideration of the retracted statements and rejected this contention.

Conclusion:
The Court dismissed the appeal, upholding the validity of the initial detention order issued on 5-2-1992, while acknowledging the infraction of the detenue's constitutional right under Article 22 due to non-informing of the right to representation. The Court found no merit in the contentions regarding the delay in execution, the detenue's custody, and the non-consideration of retracted statements.

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