2006 (11) TMI 642 - SC - FEMA

Whether order of detention dated 21-7-2005 passed against the detenu under S.3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ( the COFEPOSA Act )cannot be sustained?

Summary

Issues:
1. Writ of habeas corpus for quashing an order of detention under COFEPOSA Act.
2. Alleged offence under S.135 of the Customs Act.
3. Delay in disposing of representations made by the detenu.
4. Failure to consider representations promptly by detaining authority and State Government.
5. Quashing of the order of detention.

Analysis:
1. The petitioner, the wife of the detenu, sought a writ of habeas corpus to challenge the order of detention under the COFEPOSA Act. The detenu was alleged to have committed an offence under S.135 of the Customs Act by exporting common salt misdeclared as high-value 'G' salt. The detenu was arrested, released on bail, and made representations before the order of detention was issued.

2. The order of detention was passed by the Principal Secretary (Appeals and Security), Government of Maharashtra. The detenu was arrested in Delhi and served the detention order in Mumbai. The petitioner filed a writ petition which was dismissed, directing the detenu to make fresh representations. The detenu made representations, one before the detaining authority and another before the State Government, which were eventually rejected.

3. The delay in disposing of the representations by the detaining authority and the State Government was a key issue. The affidavits filed revealed a lack of satisfactory explanation for the delay in considering the detenu's representations. The detaining authority and the State Government failed to promptly address the representations, leading to the quashing of the detention order.

4. The detaining authority and the State Government were found to have not applied independent minds in considering the detenu's representations promptly. The detaining authority took an unreasonably long time to reject the representations, indicating a lack of diligence. The Additional Chief Secretary of the State disposed of the representation swiftly, highlighting the detaining authority's failure to act promptly.

5. Due to the delays and lack of proper consideration of the detenu's representations, the Supreme Court quashed the order of detention and ordered the immediate release of the detenu. The court found that the detaining authority and the State Government had not satisfactorily explained the delays, leading to the decision to quash the detention order.