2009 (10) TMI 897 - HC - Customs

Detention of person - writ of Habeas Corpus - the DRI Officials recovered and seized 201.600 kgs.of Ketamine Hydrochloride, the item which is not allowed to be exported without obtaining a licence issued by the Drug Control Authorities and a No Objection Certificate issued by the Narcotics Commissioner

Issues Involved:
1. Non-placement of vital documents before the detaining authority.
2. Clubbing of charges under Section 3(1)(i) and Section 3(1)(ii) of the COFEPOSA Act.
3. Non-application of mind by the detaining authority.
4. Delay in passing the detention orders.
5. Inadequate information provided to the detenu regarding documents supplied.

Detailed Analysis:

Non-placement of Vital Documents:
The petitioners argued that the bail application and bail order for the detenu in H.C.P.No.523/2009, and the interim bail order for the detenu in H.C.P.No.640/2009, were not placed before the detaining authority nor supplied to the detenus. This non-placement of relevant materials was claimed to vitiate the detention orders. The court referred to precedents, including Haji Ishabhai Agewan vs. Union of India and M.Ahamed Kutty vs. Union of India, which emphasized the necessity of placing all vital documents before the detaining authority. However, it was noted that in the present case, the detenu in H.C.P.No.523/2009 was granted statutory bail without a detailed order, and the detenu in H.C.P.No.640/2009 was granted interim bail. Thus, the court concluded that non-furnishing of these documents did not impair the detenu's ability to make an effective representation, distinguishing this case from the cited precedents.

Clubbing of Charges:
The petitioners contended that the detention orders improperly combined charges of smuggling (Section 3(1)(i)) and abetment (Section 3(1)(ii)) under the COFEPOSA Act, which indicated non-application of mind. The court examined the definitions and provisions under the Customs Act, particularly Section 2(39) defining "smuggling." It was found that none of the detenus had filed shipping bills, which is a prerequisite for smuggling under Section 2(39). The court held that clubbing charges of smuggling and abetment without proper basis demonstrated non-application of mind by the detaining authority.

Non-application of Mind:
The petitioners highlighted several instances of non-application of mind, including the detaining authority's mechanical deletion or addition of the word "you" in the grounds of detention and the incorrect invocation of Section 77 of the Customs Act, which pertains to baggage declaration and is irrelevant to the case. The court agreed that these errors indicated a lack of careful consideration by the detaining authority.

Delay in Passing the Detention Orders:
The petitioners argued that there was an undue delay of four months in passing the detention orders, which were based on a single instance of alleged smuggling. The court concurred that the delay and reliance on a solitary incident undermined the justification for preventive detention.

Inadequate Information Provided to the Detenu:
The petitioners claimed that a letter dated 24.04.2009 from the Directorate of Revenue Intelligence was supplied to the detenu only on the previous working day of the Advisory Board hearing, without clear information on its purpose. This deprived the detenu of the opportunity to make an effective representation. The court cited Maninder Singh vs. State of Tamil Nadu, which held that unclear and last-minute document supply violates the detenu's rights under Article 22(5) of the Constitution. The court found this principle applicable and ruled that the detenu's rights were infringed.

Conclusion:
The court concluded that the detention orders suffered from several infirmities, including non-placement of vital documents, improper clubbing of charges, non-application of mind, undue delay, and inadequate information provided to the detenus. Consequently, the habeas corpus petitions were allowed, and the detention orders were set aside, directing the immediate release of the detenus unless required in connection with any other case.

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