1992 (10) TMI 272 - SC - Indian Laws

Summary

Issues Involved:

1. Delay in communication of the declaration under Section 9(1) of the COFEPOSA Act.
2. Validity of the declaration under Section 9(1) of the COFEPOSA Act.
3. Territorial nexus and jurisdiction of the detaining authority.
4. Application of mind by the detaining authority regarding the likelihood of the detenu being released on bail.
5. Non-placing of the full text of the remand order of another accused before the detaining authority.
6. Typographical error in the declaration.
7. Grounds of detention under Section 3(1) of the COFEPOSA Act.

Issue-wise Detailed Analysis:

1. Delay in communication of the declaration under Section 9(1) of the COFEPOSA Act:

The appellant contended that the declaration under Section 9(1) was served on the detenu with a delay of 21 days, depriving him of the opportunity to make an effective representation. The Court held that Section 9(1) provides a maximum period of 5 weeks for making the declaration but does not specify a statutory period for communicating the same to the detenu. The Court found that the declaration was communicated within a reasonable time, and the detenu had sufficient time to make his representation before the Advisory Board.

2. Validity of the declaration under Section 9(1) of the COFEPOSA Act:

The Court rejected the contention that the declaration was invalid due to delayed communication. It noted that the Advisory Board met 11 days after the declaration was communicated, providing the detenu ample time to make his representation. The Court also cited a precedent, Smt. Azra Fatima v. Union of India, which supported the view that the principle of communication within five or fifteen days does not apply to declarations under Section 9(1).

3. Territorial nexus and jurisdiction of the detaining authority:

The appellant argued that there was no territorial nexus for the detaining authority to pass the detention order as the declaration mentioned smuggling through Indian coastal waters contiguous to Karnataka, while the detention order was for Maharashtra. The Court found that the detenu's activities had a clear nexus with Maharashtra, as the conspiracy was hatched in Bombay, and arrangements for smuggling were made there. The Court concluded that the detaining authority had legitimate grounds to pass the detention order.

4. Application of mind by the detaining authority regarding the likelihood of the detenu being released on bail:

The appellant contended that there was no application of mind by the detaining authority regarding the likelihood of the detenu being released on bail. The Court held that the detaining authority was aware of the detenu's judicial custody and was satisfied that the detenu was likely to continue smuggling activities if released. The Court referred to the precedent in D.S. Chelawat v. Union of India, which established that compelling reasons must be shown for detention despite judicial custody. The Court found that the detaining authority had sufficient material to infer that the detenu was likely to be released on bail.

5. Non-placing of the full text of the remand order of another accused before the detaining authority:

The appellant argued that the non-placing of the full text of the remand order of Sajid Ali before the detaining authority vitiated the detention order. The Court held that the substance of the remand order was placed before the detaining authority, and the non-placing of the full text did not affect the authority's subjective satisfaction or the detenu's right to make a detailed representation.

6. Typographical error in the declaration:

The appellant contended that the use of "Indian Coastal Waters" instead of "Indian Customs Waters" in the declaration indicated a lack of application of mind. The Court found that this was a typographical error and did not prejudice the detenu. The Court agreed with the High Court's conclusion that the error did not vitiate the order.

7. Grounds of detention under Section 3(1) of the COFEPOSA Act:

The appellant argued that the detention order should have been made under Section 3(1)(ii) for abetting smuggling, rather than Section 3(1)(i) for smuggling. The Court noted that this ground was not raised before the High Court or in the appeal. The Court found no merit in this submission, as the order was passed under Section 3(1) in general.

Conclusion:

The Supreme Court dismissed the appeal and the writ petition, finding no merit in any of the contentions questioning the legality of the detention order. The Court upheld the validity of the detention order and the declaration under Section 9(1) of the COFEPOSA Act.