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2020 (6) TMI 598 - HC - CustomsHabeas Corpus Petition - Validity of Detention Order - Smuggling - Gold - It is the contention of the respondents that earlier, the petitioner was arrested for having smuggled 1200 grams of gold - HELD THAT - The orders of remand passed against the petitioner were not furnished to her depriving her fundamental right to submit an effective representation to the detaining authority for revocation of the detention order. Therefore, the petitioner is entitled to succeed on this ground and consequently, the impugned order of detention is liable to be quashed. The Habeas Corpus Petition is allowed.
Issues Involved:
1. Validity of the detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). 2. Non-supply of remand orders to the petitioner and its impact on the right to make an effective representation. Detailed Analysis: 1. Validity of the Detention Order under COFEPOSA: The petitioner challenged the detention order issued by the first respondent on 11.10.2019 under COFEPOSA. The detention was based on an incident on 25.08.2019 where the petitioner was intercepted at Chennai Airport, and gold bars weighing 6478 grams were seized from her possession. The petitioner was found holding a Malaysian passport, and upon questioning, she admitted to smuggling gold for monetary benefits. She was arrested and remanded to judicial custody for committing offenses under Sections 132, 135 (1) (a), and 135 (1) (b) of the Customs Act, 1962. The respondents also noted a previous incident involving the petitioner smuggling 1200 grams of gold. The first respondent, after considering the material evidence and the petitioner's frequent travels, concluded that her activities posed a threat to national security and government revenue, leading to the issuance of the detention order. 2. Non-Supply of Remand Orders and Its Impact: The petitioner contended that the non-supply of remand orders prevented her from making an effective representation against the detention order. The petitioner had requested copies of the remand orders through a representation dated 08.11.2019, but the respondents failed to provide them. The petitioner argued that this non-supply violated her fundamental right to make an effective representation, as established in the case of Chinna Ponnu vs. The Secretary, Prohibition & Excise Department, Government of Tamil Nadu. The court acknowledged that the remand orders are crucial for the detenue to understand the grounds for her continued detention and to challenge any possible ill-treatment or procedural lapses. The court noted that the respondents did not deny receiving the petitioner's representation and failed to provide any justification for not supplying the remand orders. The court distinguished this case from the Supreme Court's decision in Hawabi Sayed Arif Sayed Hanif (Smt) vs. L. Hmingliana and others, where the substance of the remand order was provided to the detaining authority. The court concluded that the non-supply of remand orders to the petitioner deprived her of the opportunity to make an effective representation, thereby vitiating the detention order. Consequently, the court allowed the Habeas Corpus Petition, quashed the detention order dated 11.10.2019, and directed the release of the detenue unless she was required in connection with any other case.
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