2016 (4) TMI 1247 - HC - Customs

Doctrine of Habeas Corpus - Detention of petitioners - smuggling of gold - baggage rules - section 3 1 i of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 - Held that - it is not in dispute that the detenus in their bail applications have retracted the inculpatory statements given to the authorities. But in paras 11 & 12 of the counter affidavit filed by the first respondent it is stated that the detenus have given voluntary statements and no retractions of statement have been made. No written retractions were made either when they were in jail or when they were out on bail or during the course of investigation hence the consideration of the retraction does not arise. Further the detention order is silent about the retraction. The detention order is being passed as if the detenu I Om Prakash attempted to bring 23 kilograms of gold without proper declaration and it is also mentioned in the grounds of detention however the declaration card was neither placed before the detaining authority nor supplied to the detenu despite asked for in the representation dated 29.09.2015. In the counter affidavit it is stated that the documents relied upon were supplied to the detenu. However in the rejection order dated 28.10.2015 nothing is mentioned about supply of declaration card - It is settled law that the detaining authority should furnish all relevant and relied upon documents to the detenu to enable him to make effective representation. Further all documents which are relevant which would have bearing on the issue which are likely to affect the mind of the detaining authority should be placed before it. In this case the detention order would disclose that the detaining authority relies on the declaration card. However it was neither placed before the detaining authority nor supplied to the detenu to make further representation to the advisory board. Impoundment of passport of detenues - the passports of the detenus have been impounded by the authorities after their arrest - Held that - when there was no material placed before the detaining authority that there is likelihood of detenus indulging in smuggling activities in future the subjective satisfaction arrived at by the detaining authority is based on no material. Detention order passed is set aside - petition allowed - decided in favor of petitioner.

Summary

Issues Involved:
1. Retraction of Statements
2. Delay in Passing the Detention Order
3. Supply of Declaration Form
4. Impounding of Passports
5. Subjective Satisfaction and Material Evidence
6. Rejection of Representation

Issue-wise Detailed Analysis:

1. Retraction of Statements:
The petitioners argued that their bail applications, which included retracted statements, were not considered by the detaining authority. The court noted that the detaining authority must reflect awareness of retraction in the grounds of detention. Citing previous judgments, the court emphasized that failure to consider retraction vitiates the detention order. Despite the respondents' claim that retractions were considered, the court found no evidence of this in the detention order.

2. Delay in Passing the Detention Order:
The petitioners contended that the 13-month delay between their arrest and the detention order broke the nexus between the incident and the order. The court referenced several precedents where delays in issuing detention orders led to quashing the orders due to lack of genuine subjective satisfaction. The court found the respondents' explanation for the delay unsatisfactory and concluded that the delay vitiated the detention order.

3. Supply of Declaration Form:
The petitioners argued that the declaration form, which was crucial to the case, was neither placed before the detaining authority nor supplied to the detenus. The court reiterated the principle that all relevant documents must be supplied to the detenu to enable effective representation. The failure to provide the declaration form deprived the detenus of their right to make a proper representation, leading the court to rule in favor of the petitioners on this ground.

4. Impounding of Passports:
The petitioners asserted that their passports were impounded, making it unlikely for them to indulge in future smuggling activities. The court cited the Supreme Court's decision that impounding a passport diminishes the likelihood of smuggling, and without material evidence to suggest otherwise, the subjective satisfaction of the detaining authority is not justified. The court found no material evidence supporting the likelihood of future smuggling activities by the detenus.

5. Subjective Satisfaction and Material Evidence:
The court emphasized that subjective satisfaction must be based on all relevant facts and documents. The detaining authority must supply all relied-upon documents to the detenu. The court found that the detaining authority did not consider the retracted statements, the delay in passing the order, and the impounded passports, leading to a conclusion that the subjective satisfaction was not genuine.

6. Rejection of Representation:
The petitioners argued that only the factum of rejection of their representation was communicated, not the order itself. The court, referencing Supreme Court judgments, held that a non-speaking order does not amount to a failure of justice if the file shows subjective satisfaction. Upon reviewing the file, the court found that the respondents had considered and rejected each point raised by the detenus. However, since the petitioners did not press this ground, the court rejected it.

Conclusion:
The court allowed the Habeas Corpus Petitions, setting aside the detention orders dated 22.07.2015. The detenus were ordered to be released forthwith unless required for any other case.