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2003 (10) TMI 61 - SC - Customs


Issues Involved:
1. Legitimacy of the detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.
2. Alleged delay in handling the representation by the detenu.
3. The procedural correctness regarding the submission of the representation.
4. The legality of the High Court's review order.
5. The impact of the detenu being in custody on the validity of the detention order.
6. The appropriateness of directly approaching the Supreme Court under Article 32 of the Constitution.

Detailed Analysis:

1. Legitimacy of the Detention Order:
The detenu was found in possession of contraband articles, including gold and cellular phones, without valid permission or documents for importation. The articles were seized under the Customs Act, 1962, and the Foreign Trade (Development and Regulation) Act, 1992. The detention order was passed to prevent future smuggling activities. The detenu made voluntary statements recorded under Section 108 of the Customs Act. The order of detention was based on the subjective satisfaction of the authority concerned, which is a preventive measure rather than punitive.

2. Alleged Delay in Handling the Representation:
The High Court found an unexplained delay from the stage of dispatch from the President's Secretariat till it reached the Government of Tamil Nadu and the Union of India. This delay was deemed a violation of the constitutional requirement of dealing with the representation with utmost expedition. Article 22(5) of the Constitution mandates the detaining authority to consider the representation speedily, and any infringement invalidates the detention order.

3. Procedural Correctness Regarding the Submission of the Representation:
The detenu's father addressed the representation to the President of India instead of the specified authorities in the detention order. The High Court noted that the representation should have been made to the Secretary to the Government of Tamil Nadu or the Government of India, Ministry of Finance, Department of Revenue. The Supreme Court emphasized that the representation should be made to the indicated authorities to facilitate expeditious consideration. The detenu did not come with clean hands, and there was a deliberate attempt to create confusion.

4. Legality of the High Court's Review Order:
The High Court transgressed its jurisdiction by entertaining the review petition with entirely new issues. The review application disclosed for the first time that the representation was made to the President of India. The Supreme Court noted that the High Court should not have taken into account factual aspects not disclosed in the writ petition. The High Court's review order was not permissible on such grounds.

5. Impact of the Detenu Being in Custody on the Validity of the Detention Order:
The detenu was already in custody when the detention order was passed. The detaining authority must show awareness of the detenu's custody and the likelihood of release on bail. The order of detention must indicate the necessity of keeping the detenu in preventive detention. The Supreme Court referred to several cases where the principles were set out, noting that subsisting custody does not invalidate a preventive detention order if the authority is reasonably satisfied about the likelihood of release and the need to prevent prejudicial activities.

6. Appropriateness of Directly Approaching the Supreme Court Under Article 32:
The Supreme Court highlighted that many petitioners directly approach the Supreme Court under Article 32 without first approaching the concerned High Courts. It is appropriate to approach the High Court under whose jurisdiction the order of detention has been passed. The Supreme Court should be approached directly only if there are satisfactory reasons why the High Court could not be approached or if it is futile to do so.

Conclusion:
The Supreme Court dismissed the appeal, noting that the detenu had already undergone detention for almost the entire period. The Court emphasized the importance of procedural correctness in handling representations and the necessity of approaching the appropriate authorities and courts. The observations made by the Court aim to ensure that the balance between individual rights and national interests is maintained.

 

 

 

 

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