2019 (6) TMI 1363 - HC - Customs

Bail application - Service of detention order - section 3(3) of Conservance of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - HELD THAT - Respondent no. 3 Detaining authority was aware of the requirement of serving orders of detention and grounds of detention with relied upon documents. It is in the face of this requirement and knowledge it passed the order which we have mentioned supra. The submission that preparation of pages and bulk of record did not enable the respondents to serve relied upon documents simultaneously with the order of detention upon the petitioners, is therefore, unsustainable. The authorities could have in appropriate cases indicated that because of huge records and necessary clerical work, relied upon documents would be served in terms of section 3(3) of COFEPOSA Act. The order does not carry any mention on these lines and on the contrary it gives an impression to the contrary. The impugned order of detention is unsustainable - appeal allowed.

Summary

Issues Involved:
1. Validity of the detention order dated 17/5/2019.
2. Compliance with the procedural safeguards under Article 22(5) of the Constitution of India and Section 3(3) of the COFEPOSA Act.
3. Application of mind by the detaining authority regarding the imminent possibility of the petitioners' release on bail.
4. Timeliness and completeness of the service of grounds of detention and relied upon documents.

Issue-wise Detailed Analysis:

1. Validity of the Detention Order Dated 17/5/2019:
The petitioners challenged the detention order dated 17/5/2019. The court noted that the detention order was served on the petitioners on 18/5/2019, and the documents relied upon were served on 21/5/2019 and 22/5/2019. The court found that the detention order and grounds of detention were not served together with the relied upon documents, which is a violation of the procedural requirements.

2. Compliance with Procedural Safeguards:
The court emphasized the importance of procedural safeguards under Article 22(5) of the Constitution and Section 3(3) of the COFEPOSA Act. It noted that the grounds of detention must be communicated to the detenue as soon as possible, ordinarily within five days, and in exceptional circumstances, within fifteen days with reasons recorded in writing. The court found that the relied upon documents were not served simultaneously with the detention order, which violated the procedural safeguards.

3. Application of Mind by the Detaining Authority:
The court examined whether the detaining authority applied its mind to the imminent possibility of the petitioners' release on bail. The court noted that the detaining authority must demonstrate awareness of the detenue's judicial custody and indicate reasons for the satisfaction that there is an imminent possibility of release and the likelihood of indulging in prejudicial activities upon release. The court found that the impugned orders did not show any application of mind to the possibility of the petitioners' release on bail, which is a crucial requirement.

4. Timeliness and Completeness of Service of Grounds of Detention and Relied Upon Documents:
The court referred to various judgments and guidelines, emphasizing that the grounds of detention and the relied upon documents must be served together to enable the detenue to make an effective representation. The court found that the relied upon documents were not served along with the detention order, which vitiated the entire exercise. The court also noted that the detaining authority did not record any reasons for the delay in serving the documents, which is a violation of Section 3(3) of the COFEPOSA Act.

Conclusion:
The court quashed and set aside the impugned order of detention, finding it unsustainable due to the procedural violations and lack of application of mind by the detaining authority. The court stayed the order for one week to allow the respondents to approach the Hon'ble Apex Court. The rule was made absolute accordingly.