2008 (2) TMI 954 - HC - Customs

Summary

Issues Involved:
1. Legitimacy of the Detention Order dated 27.12.2007.
2. Compliance with Article 21 and Article 22(5) of the Constitution of India.
3. Impact of previous Detention Order on the current Detention Order.
4. Competence of the authority filing the Counter Affidavit.
5. Potential revocation and reissuance of the Detention Order.

Summary:

1. Legitimacy of the Detention Order dated 27.12.2007:
The Petitioner sought annulment of the Detention Order dated 27.12.2007 issued against her husband to prevent future smuggling. The Detenu was arrested on 29.10.2007 u/s 104 of the Customs Act, 1962, and would have been entitled to bail u/s 167(2) Cr.PC after sixty days. The Detention Order was issued to prevent his release on bail, which was acknowledged by the Detaining Authority.

2. Compliance with Article 21 and Article 22(5) of the Constitution of India:
Article 21 ensures no person is deprived of life or personal liberty except according to the procedure established by law. Preventive Detention, an inroad into Fundamental Rights, is permissible under Article 22(5), which mandates communication of grounds for detention and opportunity for representation. The Supreme Court has guarded against the misuse of Preventive Detention, emphasizing strict adherence to procedural law.

3. Impact of previous Detention Order on the current Detention Order:
The Detaining Authority considered the previous Detention Order, which was quashed by the Court, in the current Detention Order. The Court opined that reliance on a quashed Detention Order could render the new order illegal. The Detaining Authority's subjective satisfaction was influenced by the previous order, despite its annulment. The Court noted that while reference to the previous order is necessary, it should not affect the decision-making process.

4. Competence of the authority filing the Counter Affidavit:
The Counter Affidavit was filed by Ms. Kameswari Subramanian instead of Ms. Rashida Hussain, the Detaining Authority, who was on leave. The Court emphasized that the Detaining Authority should file the affidavit, especially when the legitimacy of the Detention Order is questioned, to explain the subjective satisfaction.

5. Potential revocation and reissuance of the Detention Order:
The Court suggested the Respondents consider revoking the Detention Order u/s 11 of the COFEPOSA Act and issuing a fresh order, removing errors in the current one. The Court set aside the Detention Order, granting liberty to the Government to pass a fresh order on the same facts if deemed necessary.

Conclusion:
The writ petition was allowed, the Detention Order was set aside, and the Detenu was ordered to be released unless wanted in another case. The Government was granted liberty to issue a fresh Detention Order on the same facts if necessary. No orders as to costs were made.