2006 (8) TMI 668 - HC - Customs

Summary

Issues Involved:
1. Legality and justification of the detention order.
2. Non-placement and non-consideration of vital documents by the detaining authority.
3. Non-supply of relied upon documents to the detenu.
4. Delay in consideration of the detenu's representation.
5. Non-independent consideration by the Central Government.
6. Supply of illegible copies and consideration of irrelevant material.

Detailed Analysis:

1. Legality and Justification of the Detention Order:
The petitioner challenged the detention order dated 15.12.2005, issued under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), arguing it was illegal, arbitrary, and unjustified. The detenu was accused of fraudulently obtaining EPCG licenses and importing vehicles at concessional rates for personal use, thus evading customs duty.

2. Non-placement and Non-consideration of Vital Documents:
The petitioner contended that several vital documents were not placed before the detaining authority, which impaired the subjective satisfaction of the authority. These documents included:
- Representation dated 12.12.2005 by the detenu, setting out his defense.
- Show cause notice F. No. S/40-EPCG-456(A)/03-04 JCH dated 22.7.2004.
- Importer Exporter Code (IEC) pertaining to the detenu's firms.
- Agreement and Special Power of Attorney dated 9.11.2000 related to the operation of Raj Mahal Bhindar, a Heritage Hotel.

The court found that these documents were not part of the relied upon documents nor supplied to the detenu, which vitiated the detention order.

3. Non-supply of Relied Upon Documents to the Detenu:
The petitioner argued that several documents mentioned in the grounds of detention were not supplied to the detenu, including:
- Representation dated 12.12.2005.
- Show cause notice dated 22.7.2004.
- Documents seized under Panchnama dated 30.8.2005.
- Writ Petition No. 5431/2002.

The court held that non-supply of these vital documents deprived the detenu of the opportunity to make an effective representation, thus violating Article 22(5) of the Constitution.

4. Delay in Consideration of the Detenu's Representation:
The petitioner claimed there was an undue delay in considering the detenu's representation dated 1.2.2006. The detenu received memoranda rejecting his representation on 13.2.2006 and 14.2.2006. The court found that the Central Government did not deal with or consider the representation independently and promptly, which rendered the continued detention of the detenu bad in law.

5. Non-independent Consideration by the Central Government:
The petitioner argued that the Central Government did not independently apply its mind to the detenu's representation and was influenced by the detaining authority's rejection of the representation. The court agreed that non-independent consideration by the Central Government was fatal to the detention order.

6. Supply of Illegible Copies and Consideration of Irrelevant Material:
The petitioner contended that some of the relied upon documents were illegible and that the detaining authority considered irrelevant material, such as the use of imported cars for earning foreign exchange. The court found that illegible documents and consideration of irrelevant material impeded the detenu's ability to make an effective representation.

Conclusion:
The court quashed the detention order dated 15.12.2005, finding that the non-supply and non-consideration of vital documents, delay in representation consideration, non-independent consideration by the Central Government, and supply of illegible documents rendered the detention order bad in law. The detenu was ordered to be released forthwith unless wanted in any other case.