2002 (12) TMI 500 - HC - Companies Law

Summary

Issues:
Challenge to preventive detention order under COFEPOSA Act based on failure to consider retraction letter before passing detention order.

Analysis:
The judgment pertains to a challenge against a preventive detention order issued under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The detenu was intercepted at an airport carrying goods worth significantly more than declared. Subsequently, a detention order was passed on 4-4-2002. The petitioner contended that a retraction letter sent by the detenu, retracting his earlier statement and claiming innocence, was not considered by the detaining authority before passing the order.

The petitioner's counsel argued that the failure to present the retraction letter before the detaining authority was a crucial omission that could have impacted the decision. The State admitted that the letter was received by the Customs Department on 28-3-2002 but was not forwarded to the detaining authority before the detention order was issued. The State acknowledged the mistake and clarified that the letter was later considered during the confirmation process by the Advisory Board and State Government.

The court noted that the retraction letter, which was crucial in presenting the detenu's side of the story and asserting innocence, should have been before the detaining authority before the order was passed. Despite the State's explanation of an inadvertent error, the court emphasized the significance of the letter in influencing the detaining authority's decision. The court deemed the omission of not presenting the retraction letter as a fatal error that vitiated the detention order.

Upon reviewing the letter presented by the petitioner's counsel, the court concluded that the failure to forward the retraction letter to the detaining authority was a critical flaw that invalidated the detention order. Consequently, the court allowed the writ petition, quashed the detention order, and ordered the detenu's immediate release, unless required in connection with another case. The judgment highlights the importance of considering all relevant documents, especially those presenting the detainee's perspective, in preventive detention cases under the COFEPOSA Act.