1998 (10) TMI 533 - HC - Customs

Summary

Issues involved:
1. Legality of the detention order under Section 3(1) of the COFEPOSA Act.
2. Non-placement of the detenu's reply to the show cause notice before the detaining authority.
3. Non-supply of the detenu's reply to the detenu, affecting his right to make an effective representation under Article 22(5) of the Constitution of India.

Issue-wise detailed analysis:

1. Legality of the detention order under Section 3(1) of the COFEPOSA Act:
The petitioner, the mother of the detenu, challenged the detention order dated 4-12-1997 under Article 226 of the Constitution of India. The detenu was detained under Section 3(1) of the COFEPOSA Act due to his involvement in smuggling activities. The detenu was apprehended at Sahar International Airport, Mumbai, with US $600,000 concealed in sweet boxes, and Singapore $102 on his person, without the required legal documents. The detenu's statements were recorded under Section 108 of the Customs Act, where he admitted to carrying the currency to Singapore.

2. Non-placement of the detenu's reply to the show cause notice before the detaining authority:
Ground No. 4(x) of the petition highlighted that the detenu's reply to the show cause notice dated 5-9-1997 was not placed before the detaining authority. The detaining authority argued that the reply was not a vital document and its non-consideration did not affect his subjective satisfaction. However, the court found this argument unworthy of acceptance. The sponsoring authority was aware that the detenu would furnish his reply to the Commissioner of Customs (Airport) and was duty-bound to inquire about it. The court emphasized that the sponsoring and detaining authorities must exercise eternal vigilance to sustain a preventive detention order.

3. Non-supply of the detenu's reply to the detenu, affecting his right to make an effective representation under Article 22(5) of the Constitution of India:
The court observed that the detenu's reply dated 27-10-1997 was a vital document. The reply contained significant pleas, including the denial of possession of foreign currency, false implication, coercion to sign statements, and procedural violations by the authorities. The court noted that the detenu's reply was crucial for making an effective representation under Article 22(5) of the Constitution. The non-placement of the reply before the detaining authority and its non-supply to the detenu vitiated the detention order and hampered the detenu's fundamental right to make an effective representation.

Conclusion:
The court concluded that the non-placement of the detenu's reply to the show cause notice before the detaining authority and the failure to supply its copy to the detenu precluded the detenu from making an effective representation. Consequently, the detention order was quashed, and the detenu was directed to be released forthwith unless required in another case. The petition was allowed, and the rule was made absolute.