1980 (8) TMI 206 - SC - Customs

Summary

Issues Involved:
1. Authority of the Secretary to pass the order of detention.
2. Application of mind by the detaining authority.
3. Delay and refusal in supplying copies of documents to the detenus.
4. Rejection of representation by an unauthorized person.
5. Competence of the person rejecting the representation.

Detailed Analysis:

1. Authority of the Secretary to Pass the Order of Detention:
The detenus challenged the validity of the detention order on the ground that it was signed by the Secretary in the Home Department, who allegedly had no authority to pass such an order. The argument was based on the rules of business framed under Article 166 of the Constitution. However, the court found that the original records demonstrated the Minister concerned had indeed passed the order of detention, rendering this contention devoid of merit.

2. Application of Mind by the Detaining Authority:
The detenus argued that the detaining authority did not consider the earlier statements of four persons from whom they claimed to have acquired the gems. These statements allegedly supported the detenus' contention with documentary evidence. The court found no evidence of smuggling and criticized the detaining authority for relying on the presumption under Section 123 of the Customs Act, which was inapplicable under COFEPOSA. This indicated a non-application of mind by the detaining authority.

3. Delay and Refusal in Supplying Copies of Documents to the Detenus:
The detenus requested copies of statements and documents relied upon in the grounds of detention to make an effective representation. The State Government refused this request, which was later directed by the Central Government to be fulfilled. The court emphasized that the constitutional imperatives under Article 22(5) require the detaining authority to supply all basic facts and materials relied upon in the grounds of detention. The delay of over a month in supplying these documents was deemed unreasonable and vitiated the detention.

4. Rejection of Representation by an Unauthorized Person:
The detenus contended that their representation for revocation of detention was wrongly rejected by an unauthorized person, as only the Revenue Minister of the Union Government was authorized to deal with such representations under the Rules of Business. The court did not find sufficient evidence to support this contention.

5. Competence of the Person Rejecting the Representation:
The representation made by the detenus to the detaining authority was reportedly rejected by the Adviser to the Governor of Maharashtra, as the State was under President's rule. The court found that the Adviser was competent under the Rules of Business framed under Article 166 to deal with and reject such representations, thus dismissing this contention.

Conclusion:
The court found merit in the argument regarding the delay and refusal in supplying copies of documents to the detenus, which violated their constitutional right to make an effective representation. The other contentions were dismissed based on the evidence provided. The writ petitions were allowed, and the detenus were ordered to be released on April 23, 1980.