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2016 (2) TMI 853 - SC - CustomsSmuggling of gold - detention of the individual - challenge to the order passed under Sections 3(1)(i) and 3(1)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 qua the detenu Barik Biswas, brother of the appellant. - Held that - we are unhesitatingly satisfied that adjudication on the issue of remittance of a pending representation to the Advisory Board would suffice to dispose of this appeal. We, thus, propose to adopt this course. As admittedly, the detenu's representation dated 08.07.2014, pending with the Central Government, the appropriate Government in the case, was not forwarded to the Advisory Board and was instead rejected during the pendency of the proceedings before the Advisory Board, we are constrained to hold that the detention of the detenu is constitutionally invalid. The rejection of the representation by the Central Government later on 21.07.2014 during the pendency of the proceedings before the Advisory Board is of no consequence to sustain the detention. Consequently, the order of confirmation as well is rendered non est by this vitiation. In view of the determination made on the above aspect of the debate, we do not consider it necessary to dilate on the other pleas raised on behalf of the detenu. In the result, the appeal succeeds. The impugned judgment and order is set aside. The orders of detention as well as the order of confirmation are hereby annulled. The detenu is directed to be set at liberty, if not wanted in any other case.
Issues Involved:
1. Legality of the detention orders dated 27.05.2014 and 13.06.2014 under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. 2. The requirement for the Central Government to forward a pending representation to the Advisory Board. 3. The validity of the second detention order dated 13.06.2014 in the presence of the first order dated 27.05.2014. 4. Consideration of exculpatory evidence not taken into account by the detaining authority. Detailed Analysis: 1. Legality of the Detention Orders: The Supreme Court examined the validity of the detention orders dated 27.05.2014 and 13.06.2014 under Sections 3(1)(i) and 3(1)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The detenu was initially arrested on 08.03.2014 for smuggling 44.659 kilograms of gold and was later released on bail, which was subsequently canceled. The Court directed the Directorate of Revenue Intelligence to complete the investigation expeditiously. The detenu surrendered on 11.06.2014, and the detention orders were served on him on 16.06.2014. The Court noted that the detaining authority passed these orders to prevent the detenu from smuggling goods in the future. 2. Requirement to Forward Representation to the Advisory Board: The detenu submitted a representation on 08.07.2014, which was pending with the Central Government when the matter was remitted to the Advisory Board on 18.07.2014. The representation was rejected on 21.07.2014 during the pendency of the proceedings before the Advisory Board. The Court emphasized that the Central Government must forward any pending representation to the Advisory Board for its effective consideration, as mandated by precedents in Jayanarayan Sukul vs. State of West Bengal and K.M. Abdulla Kunhi and B.L. Abdul Khader vs. Union of India & Ors. The failure to forward the representation to the Advisory Board rendered the detention constitutionally invalid. 3. Validity of the Second Detention Order: The appellant contended that the second detention order dated 13.06.2014 was impermissible in the presence of the first order dated 27.05.2014, making the detention unlawful. The Court noted that there was no indication that the second order superseded the first, and both orders existed simultaneously, citing different grounds for detention. 4. Consideration of Exculpatory Evidence: The appellant argued that the detaining authority failed to consider a letter dated 05.06.2012, which exonerated the detenu from the charges forming the basis of the detention order. The Court observed that several communications subsequent to 27.05.2014 were considered by the detaining authority, but this exculpatory letter was not. Conclusion: The Supreme Court concluded that the failure of the Central Government to forward the pending representation to the Advisory Board vitiated the detention order. The Court set aside the impugned judgment and order, annulled the detention and confirmation orders, and directed the detenu to be set at liberty if not wanted in any other case. The appeal was allowed with no order as to costs.
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