2005 (10) TMI 493 - SC - Customs

Order of detention dated 3-11-2004 issued by Respondent 2 whereby the father of appellant has been detained in terms of the COFEPOSA - Held that - Perusal of the proposal made by the sponsoring authority and the order of detention passed by the detaining authority would show that except by substituting word he by you no other change was effected. As from the records produced before us it would be evident that there had been due application of mind on the part of Respondent 2 in passing the order of detention. This may be so but keeping in view the safeguards envisaged under Article 22 of the Constitution it was absolutely essential for the second respondent herein to apply her mind not only at the time of grant of approval to the proposal for detention but also when the actual order of detention and grounds thereof are prepared. To the aforementioned extent there has been no application of mind on the part of the second respondent herein, and, thus, we are of the opinion that the impugned order of detention dated 3-11-2004 cannot be sustained.

Summary

Issues:
Challenge to the order of detention under COFEPOSA based on alleged lack of application of mind by the detaining authority.

Analysis:
The appellant challenged the order of detention issued under COFEPOSA against their father, which was dismissed by the High Court. The detenu was intercepted with a significant amount of foreign currency at the airport, leading to the detention order. The appellant argued that the order of detention was a verbatim reproduction of the proposal made by the sponsoring authority, with minimal changes. The court directed the state to produce records, revealing that the detaining authority had not adequately applied their mind while approving the detention. Despite the respondent's claim of due application of mind, the court found a lack of proper consideration in passing the detention order, citing the importance of safeguards under Article 22 of the Constitution.

The court referred to a previous judgment in Jai Singh v. State of JandK, highlighting the need for a genuine application of mind in detention orders. The judgment emphasized that the liberty of a subject should not be taken lightly, requiring careful consideration and not a routine or indifferent approach. Based on this precedent and the lack of proper application of mind in the current case, the court quashed the order of detention and the impugned judgment, directing the release of the detenu if not wanted in any other case.

In conclusion, the court allowed the appeal, finding that the order of detention against the detenu was not sustainable due to the lack of proper application of mind by the detaining authority.