2008 (9) TMI 15 - SC - Customs

Smuggling challenge to the legality of the order of detention on the ground of non-supply of various documents, which according to the respondent, prevented the detenu from making an effective representation against his detention - since the personal liberty of a citizen is curtailed by an order of preventive detention, the Detaining Authorities must pass an order upon being fully satisfied from materials which are for/against the detenu & order should be passed in the interest of public good

Summary

Issues Involved:
1. Legality of the detention order under COFEPOSA.
2. Non-supply of relevant documents to the detenu.
3. Impact of non-placement of favorable documents before the Detaining Authority.
4. Compliance with Article 22(5) of the Constitution.

Detailed Analysis:

1. Legality of the detention order under COFEPOSA:
The detention order against the detenu was issued under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) to prevent future smuggling activities. The detenu had obtained EPCG licenses and imported vehicles at concessional rates for personal use, violating various provisions of the Exim Policy, Foreign Trade Policy, and Customs exemptions notifications. The Directorate of Revenue Intelligence seized 51 out of 61 vehicles, and the detenu's activities were deemed to amount to smuggling under Section 2(39) of the Customs Act, as adopted in Section 2(e) of COFEPOSA.

2. Non-supply of relevant documents to the detenu:
The detenu's wife filed a Habeas Corpus petition challenging the detention order on the grounds of non-supply of various documents, which hindered the detenu from making an effective representation. The High Court allowed the petition, quashing the detention order due to the non-supply of relevant documents considered by the Detaining Authority. The Union of India appealed, arguing that all relevant documents had been supplied and that the documents not supplied originated from the detenu himself.

3. Impact of non-placement of favorable documents before the Detaining Authority:
The respondent argued that certain vital documents favorable to the detenu, such as his representation dated 12.12.2005 and the Settlement Commission's order absolving him of criminal proceedings, were not placed before the Detaining Authority. The non-placement of these documents could have influenced the Detaining Authority's decision to issue the detention order. The Court agreed that the absence of these documents before the Detaining Authority provided sufficient grounds for the detenu to question the detention order.

4. Compliance with Article 22(5) of the Constitution:
Article 22(5) of the Constitution mandates that the detenu must be supplied with all documents relied upon by the Detaining Authority to make an effective representation against the detention order. The Court emphasized that the right to personal liberty and individual freedom is paramount, and any breach of this right due to non-supply of relevant documents would vitiate the detention order. The Court referred to previous decisions, reiterating that all materials, both against and in favor of the detenu, must be considered by the Detaining Authority to ensure a just conclusion.

Conclusion:
The Supreme Court upheld the High Court's decision to quash the detention order, agreeing that the non-supply of vital documents prevented the detenu from making an effective representation. The appeal was dismissed, with the Court emphasizing the need for Detaining Authorities to apply their minds carefully and exercise great caution in passing detention orders, ensuring compliance with the procedural safeguards guaranteed under the Constitution.