2015 (5) TMI 694 - HC - Customs

Detention of appellant s husband - Habeas Coprus - Section 3(1) of the Conservation Of Foreign Exchange and Prevention Of Smuggling Activities Act, 1974 (COFEPOSA) - prevention from abatement of the smuggling of goods - Held that - Division Bench of this Court while deciding the detention matter with respect to the co-detenu - Ajay Kumar Sharma in its judgment and order dated 20th January, 2015 has taken a judicial note with respect to the spacious plea which has been taken by the sponsoring authority que the holidays which were intervening in forwarding the reply / comments is concerned - though the sponsoring authority was well aware about the view taken by a co-ordinate Division Bench of this Court while deciding Writ Petition, in case of the co-detenu that it has taken a judicial notice of the plea with respect to holidays is concerned, the sponsoring authority did not bother to take its note and improve upon itself. Delay in deciding the representation by the detaining authority between 12th December, 2014 and 2nd January, 2015 of about 20 days has not at all been explained, least satisfactorily explained by the detaining authority. It has further not been explained in the said affidavit that why it took 20 days for effecting the verification of the identity and the address of the Petitioner and the detenu. The affidavit is totally silent on this aspect. - The affidavit is also silent on this aspect and the delay of 6 days is remained unexplained. Thus, there is in all 31 days delay, which has not at all been explained, least satisfactorily explained at the instance of the Additional Chief Secretary i.e. the Respondent No.2. It is also clear from the record that there is unsatisfactory explained delay of about 21 days i.e. from 12th December, 2014 to 2nd January 2015 at the behest of the sponsoring authority in forwarding the parawise comments to the detaining authority and according to us the said delay has not at all been satisfactorily explained by the sponsoring authority. - breach of Article 22(5) of the Constitution of India at the behest of the Respondents has rendered the continued detention of the detenu illegal. We are therefore of the view that the delay as stated herein above is not satisfactorily explained and continued detention of the detenu is in violation of the constitutional mandate of Article 22(5) of the Constitution of India and the order of detention stands vitiated. - Decided in favour of appellant.

Summary

Issues Involved:
1. Legality of the detention order under COFEPOSA Act, 1974.
2. Breach of Article 22(5) of the Constitution of India due to delay in considering the representation.

Detailed Analysis:

1. Legality of the Detention Order under COFEPOSA Act, 1974:
The petitioner, the wife of the detenu, challenged the detention order dated 29th September 2014 issued under Section 3(1) of the Conservation Of Foreign Exchange and Prevention Of Smuggling Activities Act, 1974 (COFEPOSA). The detenu was alleged to be an active member of a cartel involved in smuggling Red Sanders, a natural resource protected under CITES and prohibited for export under EXIM Policy. The Directorate of Revenue Intelligence (DRI) seized 151 MTs of Red Sanders valued at approximately Rs. 60 Crores from Nhava Sheva and Panvel, revealing the detenu's involvement in smuggling activities. The detenu was also found to have rented a warehouse for storing and stuffing Red Sanders in export containers disguised as onions. The detaining authority, after considering the evidence and documents, issued the detention order to prevent the detenu from engaging in future smuggling activities.

2. Breach of Article 22(5) of the Constitution of India:
The petitioner confined the challenge to the impugned order based on the breach of Article 22(5) of the Constitution, arguing that the representation was not considered promptly and expeditiously. The Division Bench had previously quashed a similar detention order for a co-detenu on the same grounds. The representation dated 3rd December 2014, submitted by the petitioner, was received on 8th December 2014. The detaining authority sought parawise comments from the sponsoring authority, which were delayed due to verification processes and holidays. The comments were eventually received on 2nd January 2015, and the representation was rejected on 3rd January 2015. Similarly, the Additional Chief Secretary received the representation on 8th December 2014, sought comments, and rejected the representation on 8th January 2015 after a delay involving holidays and a change in officeholders.

The court noted that the delay in deciding the representation was not satisfactorily explained. The detaining authority and the Additional Chief Secretary failed to justify the time taken for verification and processing of parawise comments. The court referenced the Supreme Court's judgment in Rama Dhondu Borade v. V.K. Saraf, emphasizing the constitutional mandate to consider representations expeditiously. The unexplained delays of 20 days by the detaining authority and 25 days by the Additional Chief Secretary, along with the 21-day delay by the sponsoring authority, were deemed violations of Article 22(5).

Conclusion:
The court concluded that the unsatisfactory explanation for the delays in considering the representation rendered the continued detention of the detenu illegal. The breach of Article 22(5) vitiated the detention order, leading the court to allow the petition and order the immediate release of the detenu. The judgment underscored the importance of prompt and diligent consideration of representations to uphold constitutional rights.