2004 (5) TMI 618 - HC - Customs

Summary

Issues Involved:
1. Quashing of detention order under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.
2. Non-application of mind by the detaining authority.
3. Non-supply of relevant documents to the detenu.
4. Influence of lower functionaries in the decision-making process.
5. Detention order passed in haste.
6. Impact of the detenu's passport surrender on the likelihood of future smuggling activities.
7. Likelihood of the detenu being released on bail.

Issue-wise Detailed Analysis:

1. Quashing of Detention Order:
The petitioner sought the quashing of the detention order passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, and his release from custody. The court examined whether the detention order was legally sustainable based on the grounds provided.

2. Non-application of Mind by the Detaining Authority:
The main ground of challenge was the non-application of mind by the detaining authority. Paragraph 15 of the grounds of detention mentioned "statements of others" which were not recorded or supplied to the petitioner. The court found this Explanation by the detaining authority untenable and concluded that the reference to "statements of others" indicated non-application of mind.

3. Non-supply of Relevant Documents to the Detenu:
The court emphasized that failure to supply all material documents to the detenu would deprive him of his right to make an effective representation against the detention order, thus violating Article 22(5) of the Constitution. The court found that the detaining authority's Explanation regarding the non-supply of "statements of others" was an afterthought and not credible.

4. Influence of Lower Functionaries in the Decision-making Process:
The court scrutinized the procedure followed by the detaining authority and found that the lower functionaries had put up a draft detention order for approval before the detaining authority had applied its mind to the material. This practice was deemed inappropriate for quasi-judicial orders like detention orders, as it could unduly influence the detaining authority's decision.

5. Detention Order Passed in Haste:
The court noted the hurried manner in which the detention order was processed, with the file being submitted to the detaining authority on 6th May 2003 and the order passed on 8th May 2003. The court concluded that this haste left insufficient time for the detaining authority to consider the material effectively, further indicating non-application of mind.

6. Impact of the Detenu's Passport Surrender:
The petitioner argued that the surrender of his passport incapacitated him from engaging in future smuggling activities. The court referred to the Supreme Court's decision in Rajesh Gulati's case, which held that the retention of a passport by Customs authorities effectively foreclosed the likelihood of future smuggling activities. However, the court also considered the Supreme Court's later judgment in Sitthi Zuraina Begum's case, which held that the absence of a passport would not necessarily prevent smuggling activities. The court concluded that the retention of the passport did not eliminate the possibility of future smuggling activities.

7. Likelihood of the Detenu Being Released on Bail:
The court examined whether there was a likelihood of the detenu being released on bail. Despite the rejection of earlier bail applications, the detenu had filed another application for bail. The court found the detaining authority's conclusion that there was a possibility of the detenu being released on bail and potentially engaging in smuggling activities to be justified.

Conclusion:
The court held that the impugned detention order was vitiated due to non-application of mind by the detaining authority and undue influence of lower functionaries in the decision-making process. Consequently, the detention order was quashed.