2015 (7) TMI 749 - HC - Customs

Validity of detention order - Order under COFEPOSA - Violative of constitution of India - Held that - The constitutionality of COFEPOSA has been already upheld by a nine Judge Bench of this Court. Its constitutionality is again sought to be assailed by the petitioners in the present matter on the ground that with the change of legal regime by repeal of FERA and enactment of FEMA (the provisions contained in FEMA did not regard its violation a criminal offence) the intent and object behind the enactment of preventive detention in COFEPOSA had ceased to exist and continuation of impugned provision in COFEPOSA was violative of Article 21 read with Articles 14 and 19 of the Constitution. The menace of smuggling and foreign exchange violations has to be curbed. Notwithstanding the many disadvantages of preventive detention, particularly in a country like ours where right to personal liberty has been placed on a very high pedestal, the Constitution has adopted preventive detention to prevent the greater evil of elements imperiling the security, the safety of State and the welfare of the Nation. On the touchstone of constitutional jurisprudence, as reflected by Article 22 read with Articles 14, 19 and 21, we do not think that the impugned provision is rendered unconstitutional. There is no constitutional mandate that preventive detention cannot exist for an act where such act is not a criminal offence and does not provide for punishment. An act may not be declared as an offence under law but still for such an act, which is an illegal activity, the law can provide for preventive detention if such act is prejudicial to the state security. After all, the essential concept of preventive detention is not to punish a person for what he has done but to prevent him from doing an illegal activity prejudicial to the security of the State. The detaining Authority must apply its mind properly before passing order of detention. The Authority is obliged while passing order of detention and taking away liberty of the citizen of this country to exercise due care and caution and ensure that the person detained is so detained on grounds which justify the detention in the interest of the country. Further the proceedings in the matter of detention and the order of detention should show that such care and caution was exercised and reflects sense of responsibility while depriving citizen of his liberty without trial. - there is a bond executed and furnished and which records an undertaking of the detenu that he would not leave India without prior permission of the competent official or the Court. Pertinently, the learned Counsel does not dispute that the passport in the case before us was returned to the detenu. The detenu, thus, was free to utilize the passport. It may be that the passport authority has independent powers and after it was informed of the prejudicial activities of the detenu, it would have prevented departure from India, but that by itself does not mean that the detaining authority in any way is prevented in law from making order of detention. The passport is not surrendered nor is it in custody of the Authority. It is with the detenu. There was, therefore, a definite apprehension that the detenu would use it to smuggle foreign currency out of India. The satisfaction in that behalf is thus based on cogent and reliable material including the past record of the detenu. Thus, there was an application of mind to germane and relevant factors necessary to invoke Section 3(1)(i) of the COFEPOSA. It is a condition on which the bail has been granted. The condition inter alia is that the detenu shall attend the office of the officer or the Court on every day on which the investigation or trial is held and an undertaking is given by the detenu that he will not leave India without prior written permission of the concerned officer or the Court as may be. This is not enough to nullify the subjective satisfaction and which is recorded in the present case. This is not a case where the material or the grounds were not supplied. Rather this is a case where the detenu desired to have better and further particulars about the documents and their contents. The documents speak for themselves. They were supplied and some of them were clearly referred in the representation. The particulars thereof and as sought were not necessary to make a meaningful representation. Apart therefrom, the complaint in that behalf is identical and based on the same plea regarding alleged variance in the subjective satisfaction in the Detention Order and the reasons in support thereof. We have already dealt with and rejected it. Once we have found that the subjective satisfaction and as recorded clearly spells out the distinction in law, then, we are in agreement with Mr.Yagnik that one word or sentence from the detention order cannot be picked up and read in isolation or torn out of context. The subjective satisfaction is based on the detaining authority s opinion that it is necessary to detain the detenu so as to prevent him from indulging in smuggling activities in future. - detenu s rights guaranteed by Article 22 of the Constitution of India are in no way infringed nor is the mandate of the said Article in any way violated. There is ample opportunity given to him and to make an effective and meaningful representation. Even on that count, we do not find that the detention order suffers from any legal infirmity. - decided against the appellant.

Summary

Issues Involved:
1. Validity of the detention order under COFEPOSA.
2. Alleged non-application of mind by the detaining authority.
3. Alleged variance between subjective satisfaction and grounds of detention.
4. Right to make an effective representation.

Detailed Analysis:

1. Validity of the detention order under COFEPOSA:
The detenu was detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) based on a detention order dated 16.4.2015 issued by the second respondent. The detenu was found carrying foreign currency equivalent to Rs. 38,10,565/- at Mumbai International Airport, which was seized. He was arrested on 22.11.2014 and later released on bail with a condition not to leave the country without prior written permission. The detention order was challenged on several grounds, including the argument that the detenu had not attempted to board the flight when intercepted.

2. Alleged non-application of mind by the detaining authority:
The petitioner argued that the detaining authority blindly accepted the proposal forwarded by the Sponsoring Authority without applying its mind. The detention order mentioned preventing the detenu from smuggling goods in the future, but the grounds referred to prior cases and labeled the detenu as a repeated offender. The petitioner contended that there was a variance between the subjective satisfaction and the grounds of detention, indicating non-application of mind.

3. Alleged variance between subjective satisfaction and grounds of detention:
The petitioner highlighted a variance between the subjective satisfaction recorded in the detention order and the grounds thereof. The detaining authority's order mentioned the necessity to prevent the detenu from smuggling in the future, but the grounds referred to prior cases. The court examined whether the subjective satisfaction was based on relevant material and found that the detention order was consistent with the grounds. The court referred to the COFEPOSA Act and a recent Supreme Court judgment in "Dropti Devi & Anr. Vs. Union of India & Ors.," which upheld the constitutionality of preventive detention under COFEPOSA.

4. Right to make an effective representation:
The petitioner argued that the detenu's right to make an effective representation was hampered as he was not supplied with all the necessary documents. The court found that the detenu was provided with sufficient material to make a meaningful representation. The court noted that the complaint about the variance in subjective satisfaction was identical to the earlier argument and had already been addressed.

Conclusion:
The court concluded that the detention order was valid and based on proper application of mind. The subjective satisfaction recorded in the detention order was consistent with the grounds of detention. The detenu's right to make an effective representation was not infringed as he was provided with the necessary documents. The writ petition was dismissed, and the rule was discharged.