2019 (4) TMI 2036 - HC - Customs

Smuggling - Gold Bars - whether the indisputable fact that the Advisory Board as also the detaining authority had failed to consider the order of revocation of the detention order of the co-detenu in the same transaction viz., Annexure-1 in Ext.P6 passed in relation to Shahbas, is fatal to the order confirming the detention of the detenu and whether it is sufficient to vitiate the same? - HELD THAT - Evidently, in the case of Sri.Shahbas, the co-detenu of Sri.Abulais, the order of revocation of the order of detention was passed pursuant to the receipt of an opinion from the Advisory Board that in respect of Shahbas there is no sufficient ground for detention. The question whether the order passed by the Government revoking the order of detention is communicated to the Advisory Board or not would got no insignificance for the simple reason that the very opinion in the case of Sri.Shahbas in the same transaction was given by the Board itself. When in the case of a co-detenu in the same transaction an opinion was given by the Advisory Board, when it takes up the case of another detenu involved in the same transaction, the Board was bound to consider its earlier opinion in regard to the co-detenu. Shortly stated, in this case, despite the communication of Annexure-1 in Ext.P6 pertaining to the co-detenu the Advisory Board had failed to take it into consideration in its true perspective. In the contextual situation, it is all the more relevant to note that even going by Ext.P2, Sri.Shahbas is the head of 'MPC General Trading LLC' that is involved in smuggling activities and it was his detention, in the same transaction, that was revoked as per Annexure-1 of Ext.P6. Non-consideration of all the aspects by the Government, they are sufficient to hold Ext.P8 order confirming the order of detention, as vitiated. Once it is found that Ext.P8 order whereby Ext.P1 order was confirmed is vitiated owing to non-consideration of Annexure-1 in Ext.P6, Ext.P8 order is liable to be interfered with. The impugned order is set aside - Petition allowed.

Summary

Issues Involved:
1. Legality of the detention order under COFEPOSA Act.
2. Non-consideration of revocation order of a co-detenu by the Advisory Board and the Government.
3. Constitutional safeguards under Article 22 of the Constitution of India.
4. Impact of non-placement of relevant documents before the detaining authority.

Detailed Analysis:

1. Legality of the Detention Order under COFEPOSA Act:
The Habeas Corpus writ petition was filed challenging the detention order (Ext.P1) dated 15.03.2014, issued under Sections 3(1)(i) and 3(1)(ii) of the COFEPOSA Act, 1974, against the detenu, who was detained on 26.08.2018. The detenu had previously challenged this order unsuccessfully at both the High Court and the Supreme Court.

2. Non-consideration of Revocation Order of a Co-detenu by the Advisory Board and the Government:
The core contention in the petition was the non-consideration of Annexure-1, an order revoking the detention of a co-detenu (Sri. Shahbas) in the same transaction, by the Advisory Board and the Government. The petitioner's counsel argued that this failure was fatal to the detention order and its confirmation. The court noted that the Advisory Board had previously found no sufficient reason for detaining the co-detenu, Sri. Shahbas, and thus, the Government had revoked his detention. The court held that the Advisory Board's failure to consider this relevant fact while giving its opinion on the detenu's case vitiated the detention order.

3. Constitutional Safeguards under Article 22 of the Constitution of India:
The court referred to the Constitutional Bench decision in K.M.Abdulla Kunhi v. Union of India, which emphasized the safeguards under Article 22(4) and (5) of the Constitution. These clauses mandate that the detenu should be given the earliest opportunity to make a representation against the detention order, and the Advisory Board must report within three months whether there is sufficient cause for detention. The court reiterated that these safeguards are not mere formalities but essential rights that must be independently considered by the Government.

4. Impact of Non-placement of Relevant Documents before the Detaining Authority:
The court examined the impact of non-placement and non-consideration of the revocation order of the co-detenu before the detaining authority. It referred to various judgments, including the Bombay High Court's decision in Smt. Chandbi Mohomed Hanif Abubakar v. Union of India and the Supreme Court's decision in Alpesh Navinchandra Shah v. State of Maharashtra, which held that non-consideration of such relevant documents vitiates the detention order. The court concluded that the failure to consider Annexure-1 (revocation order of the co-detenu) by both the Advisory Board and the Government was sufficient to vitiate the order confirming the detention of the detenu.

Conclusion:
The court allowed the writ petition, setting aside the impugned order (Ext.P8) dated 12.11.2018, which confirmed the detention order (Ext.P1). The detenu was directed to be released forthwith unless required in any other case.