2001 (10) TMI 1178 - HC - Indian Laws

Summary

Issues Involved:
1. Legality of the detention order under COFEPOSA Act.
2. Non-placement of FIR before the detaining authority.
3. Impact of non-supply of FIR copy to the detenu on the right to make an effective representation.

Issue-wise Detailed Analysis:

1. Legality of the Detention Order under COFEPOSA Act:
The petitioner challenged the detention order dated 16-11-2000 under Section 3(1) of the COFEPOSA Act, issued by the Joint Secretary to the Government of India. The detenu was accused of being involved in the fraudulent export of rags disguised as ladies' garments to claim duty drawbacks. The detaining authority based its decision on the detenu's involvement in preparing and signing export documents under the instructions of Mr. Aditya Singh and forwarding them to a co-detenu. The detaining authority recorded its subjective satisfaction that the detenu's activities amounted to smuggling as defined under Section 2(39) of the Customs Act and adopted in the COFEPOSA Act, necessitating the detenu's detention to prevent future smuggling activities.

2. Non-placement of FIR before the Detaining Authority:
The petitioner argued that the sponsoring authorities failed to place a vital document, the FIR lodged by the CBI against Mr. C.D.N. Singh, Mr. Randhir Singh, Mr. Aditya Singh, and some Customs Officers, before the detaining authority. The FIR, which did not name the detenu, could have influenced the detaining authority's subjective satisfaction regarding the detenu's involvement. The detaining authority's returns denied that the non-placement of the FIR impaired its subjective satisfaction, asserting that sufficient material was placed before it to justify the detention. However, the court found that the FIR was a vital document capable of influencing the detaining authority's decision either way. The FIR indicated that the real culprits were the employers and customs officers, and the detenu was merely a servant acting under instructions.

3. Impact of Non-supply of FIR Copy to the Detenu on the Right to Make an Effective Representation:
The court emphasized that the FIR was a vital document necessary for the detenu to make an effective representation against the detention order. The non-placement of the FIR before the detaining authority and its non-supply to the detenu violated the detenu's fundamental right under Article 22(5) of the Constitution to make a representation at the earliest opportunity. The court highlighted that the right to make a representation is an effective right, not an illusory one, and the failure to provide a copy of a vital document impairs this right. The court referred to several Supreme Court judgments, including Ashadevi v. K. Shivraj and State of U.P. v. Kamal Kishore Saini, which held that the non-placement of vital documents before the detaining authority vitiates the detention order on the grounds of non-application of mind.

Conclusion:
The court concluded that the non-placement of the FIR before the detaining authority and its non-supply to the detenu vitiated the detention order on both the grounds of non-application of mind and impairment of the detenu's fundamental right to make a representation. Consequently, the court quashed the detention order and directed the immediate release of the detenu unless wanted in some other case.