1999 (10) TMI 652 - SC - Companies Law

Whether it was necessary to detain the appellant under the COFEPOSA? Held that - Writ allowed. The conclusion of the detaining authority on the facts of the present case, there is likelihood of his being released on bail could not be said to be based on no relevant material. However, in view of our findings, viz., non-placement of two material documents, one letter dated 19-4-1999 by the advocate of the detenu to the sponsoring authority and the other, letter dated 23-4-1999 by the detenu, before the detaining authority which were relevant and were likely to affect the satisfaction, hence we have no hesitation to hold that the detention of the petitioner under section 3(1) of the COFEPOSA vitiates and the detention order is unsustainable in law. Accordingly the impugned detention order dated 28-4-1999 passed by the detaining authority under section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 quashed.

Issues Involved:
1. Legality of the detention order under COFEPOSA.
2. Delay in considering the detenu's representation.
3. Non-placement of relevant documents before the detaining authority.
4. Subjective satisfaction of the detaining authority regarding the likelihood of the detenu being released on bail.

Issue-Wise Detailed Analysis:

1. Legality of the Detention Order under COFEPOSA:
The petitioner challenged the detention order dated 28-4-1999 under section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The detention order aimed to prevent the petitioner from smuggling goods in the future. The customs authorities intercepted the petitioner at Anna International Airport, Chennai, suspecting him of carrying contraband or electronic goods. Upon examination, the customs officers found 65 cellular phones, 14 AIWA walkmen, 10 cartons of State Express 555 cigarettes, and one Sony Video CD player concealed in his baggage. The goods were seized under the Customs Act, 1962, with the total value being Rs. 7,16,200 (CIF) and Rs. 10,74,300 (market value). The petitioner was arrested on 13-3-1999 and remanded to judicial custody. The detention order was served on 28-4-1999 while he was in Central Prison, Chennai.

2. Delay in Considering the Detenu's Representation:
The petitioner argued that there was a delay in considering his representation dated 21-5-1999 by both the State and Central Governments. The representation was received by the State Government on 22-5-1999, and remarks were called for on 24-5-1999, which were received on 27-5-1999, resulting in a delay of two days. The representation to the Central Government was received on 25-5-1999, and comments were called from the detaining authority on 1-6-1999. The delay was attributed to postal communication. The court held that the delay in communication through speed post was not attributable to the authorities and did not constitute callousness or undue delay.

3. Non-Placement of Relevant Documents Before the Detaining Authority:
The petitioner contended that material documents, including his letter dated 23-4-1999 and his advocate's letter dated 19-4-1999, were not placed before the detaining authority. The court emphasized that every relevant and vital document must be placed before the detaining authority. The letter dated 23-4-1999, which contained the detenu's retraction from his earlier confession and other factual assertions, was not placed before the detaining authority. Similarly, the advocate's letter dated 19-4-1999, which also contained relevant information, was not placed before the detaining authority. The court held that the non-placement of these relevant documents vitiated the detention order.

4. Subjective Satisfaction of the Detaining Authority Regarding the Likelihood of the Detenu Being Released on Bail:
The petitioner argued that the detaining authority's subjective satisfaction that there was a likelihood of the detenu being released on bail was not based on any factual basis. The court noted that the detaining authority considered the bail application dated 1-4-1999 and the rejection order dated 12-4-1999. The court held that the detaining authority could legitimately conclude that there was a likelihood of the detenu being released on bail based on the contents of the bail application and the circumstances of the case.

Conclusion:
The court quashed the impugned detention order dated 28-4-1999 under section 3(1)(i) of COFEPOSA, holding that the non-placement of relevant documents before the detaining authority vitiated the detention order. The writ petition was allowed, and the petitioner was ordered to be released from jail forthwith unless required in connection with some other case.

← Previous Next →