2002 (1) TMI 1301 - HC - Customs

Summary

Issues Involved:
1. Legality of the detention order under the COFEPOSA Act.
2. Non-placement of vital documents before the detaining authority.
3. Violation of the detenu's right to make an effective representation under Article 22(5) of the Constitution of India.

Detailed Analysis:

1. Legality of the Detention Order under the COFEPOSA Act:
The petitioner challenged the detention order dated 31-10-2001, issued under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act). The detenu was found in possession of Indian currency notes totaling Rs. 16,80,000/-, suspected to be counterfeit, and was detained to prevent him from committing similar prejudicial acts. The petitioner's counsel argued that the detention order was invalid due to the non-placement of vital documents before the detaining authority.

2. Non-placement of Vital Documents Before the Detaining Authority:
The critical issue raised was the non-placement of the complaint and FIR dated 5-10-2001 before the detaining authority. The petitioner argued that these documents were of a "vital nature" and could have influenced the detaining authority's subjective satisfaction. The detaining authority and the Deputy Director, D.R.I., contended that the FIR was not a vital document and its non-consideration did not impair the subjective satisfaction required for the detention order.

3. Violation of the Detenu's Right to Make an Effective Representation:
The petitioner asserted that the failure to supply copies of the complaint and FIR to the detenu violated his fundamental right under Article 22(5) of the Constitution of India to make an effective representation against the detention order. The court examined precedents where non-placement of vital documents before the detaining authority led to the vitiation of detention orders due to non-application of mind. The court concluded that the non-placement of the complaint and FIR, which contained similar allegations as the grounds of detention, could have influenced the detaining authority's decision.

Conclusion:
The court found merit in the petitioner's argument regarding the non-placement of vital documents. It held that the non-placement of the complaint and FIR before the detaining authority vitiated the detention order on the grounds of non-application of mind. Additionally, the failure to supply these documents to the detenu impaired his right to make an effective representation. Consequently, the court quashed the detention order and directed the immediate release of the detenu, unless he was wanted in another case.

Petition allowed.