2011 (3) TMI 1776 - HC - Indian Laws

Summary

Issues Involved:
1. Validity of the detention order under COFEPOSA Act.
2. Non-provision of particulars regarding "harbouring persons engaged in smuggling of goods."
3. Non-consideration of vital documents and information by the Detaining Authority.
4. Non-supply of incriminating documents and contents of CPUs.
5. Reliance on pending prosecution proceedings without supplying relevant documents.

Issue-wise Detailed Analysis:

1. Validity of the Detention Order under COFEPOSA Act:
The petitioner challenged the detention order dated 07.07.2010 issued under Section 3(1) of the COFEPOSA Act. The detenu was detained to prevent him from engaging in smuggling activities. The court examined whether the order was issued with proper application of mind and based on sufficient material.

2. Non-provision of Particulars Regarding "Harbouring Persons Engaged in Smuggling of Goods":
The detenu argued that the detention order was issued without providing particulars of any person engaged in smuggling of goods and harboured by the detenu. The court found that no material was discussed or produced to show that the detenu was harbouring anyone. The court concluded that in the absence of such material, the satisfaction recorded by the Detaining Authority was not justified.

3. Non-consideration of Vital Documents and Information by the Detaining Authority:
The detenu contended that the Detaining Authority failed to consider vital information, such as the conditional stay granted against the order dated 19.01.2007 and the setting aside of the order dated 31.07.2009 by CESTAT. The court noted that these facts were not mentioned or discussed in the grounds of detention. The failure to consider these vital pieces of information was deemed fatal to the case of the respondents.

4. Non-supply of Incriminating Documents and Contents of CPUs:
The detenu argued that the Detaining Authority mentioned the seizure of "incriminating CPUs and documents" but did not supply the copies of these documents and contents of the CPUs. The court observed that the documents referred to in Annexure A to the Panchnama were not supplied to the detenu. This non-supply of documents was held to violate the detenu's right under Article 22(5) of the Constitution for making an effective representation.

5. Reliance on Pending Prosecution Proceedings Without Supplying Relevant Documents:
The detenu challenged the reliance on pending prosecution proceedings mentioned in para 64 of the grounds of detention. The court found that the Detaining Authority made a specific reference to the pending prosecution while arriving at the satisfaction. However, the relevant documents concerning the prosecution proceedings were not supplied to the detenu. The court held that this non-supply of documents exhibited serious lapse on the part of the Detaining Authority.

Conclusion:
The court accepted the contentions of the detenu on the grounds of non-provision of particulars, non-consideration of vital documents, non-supply of incriminating documents, and reliance on pending prosecution proceedings without supplying relevant documents. Consequently, the court quashed the detention order dated 07.07.2010 and directed the release of the detenu forthwith unless required to be detained in any other case.