2009 (3) TMI 201 - SC - Customs

Whether there is any delay in passing the detention order and delay in disposal of the representation? Held that - it is unfortunate that the High Court while considering the Habeas Corpus writ petition filed under Article 226 of the Constitution of India by the wife of the detenu challenging the order of detention on various grounds, on going through the materials of the department as if as an Appellate Court relying on Section 482 Code of Criminal Procedure directed the Commissioner of Customs, ICD, Tughlakabad, to lodge a report with the police station, Tughlakabad within a period of 15 days along with the complete set of relevant documents to enable them to register a case under Sections 199, 420, 468 and 471 of the Indian Penal Code against the detenu. The said direction is not warranted considering the fact that issue before the High Court was about the validity of the detention order and the curtailment of the personal liberty of the detenu and nothing more. We are of the view that the High Court is not justified in issuing such direction and awarding exemplary cost of ₹ 50,000/- payable to the sponsoring authority. Appeal allowed.

Issues Involved:
1. Non-application of mind and non-supply of materials relied on by the Detaining Authority.
2. Reliance on extraneous and irrelevant materials.
3. Whether the alleged offences constitute "smuggling" under the Customs Act.
4. Delay in passing the detention order and disposal of the representation.
5. High Court's direction for criminal proceedings and imposition of costs.

Issue-wise Detailed Analysis:

1. Non-application of mind and non-supply of materials relied on by the Detaining Authority:
The appellant argued that the detention order should be quashed due to non-application of mind and non-supply of materials relied upon by the Detaining Authority. The Supreme Court examined the grounds of detention and found that the Detaining Authority had considered both the incident involving Bill of Entry No. 589144 dated 25-4-2007 and eight earlier consignments. It was noted that the Detaining Authority had relied on incomplete and inconclusive materials, which were at the stage of notice and not final adjudication. The Court emphasized that inconclusive state of investigation cannot be the basis for detention under the COFEPOSA Act.

2. Reliance on extraneous and irrelevant materials:
The appellant contended that the Detaining Authority relied on extraneous and irrelevant materials, specifically the eight earlier consignments. The Supreme Court found that the Detaining Authority had indeed relied on these consignments, which were cleared by the Customs authorities after proper verification. The Court held that reliance on these materials, which were still under investigation and not conclusively proven to be in violation of the Customs Act, was not justified. Therefore, the detention order was vitiated by consideration of irrelevant materials.

3. Whether the alleged offences constitute "smuggling" under the Customs Act:
The appellant argued that the alleged offences did not constitute "smuggling" under the Customs Act. The Supreme Court referred to the definition of "smuggling" under Section 2(39) of the Customs Act, which involves acts or omissions rendering goods liable to confiscation under Section 111 or Section 113. The Court noted that there was no conclusive finding of smuggling in the earlier consignments, and the mere issuance of a notice for reopening the case was insufficient to establish smuggling. Therefore, the Court concluded that the detention under the COFEPOSA Act was not sustainable based on the alleged offences.

4. Delay in passing the detention order and disposal of the representation:
The appellant contended that there was undue delay in passing the detention order and disposing of the representation. The Supreme Court examined the timeline of events and found that there was no undue delay in passing the detention order. The Court also noted that the representation was considered and disposed of within a reasonable time frame. Therefore, the Court rejected the contention of delay.

5. High Court's direction for criminal proceedings and imposition of costs:
The High Court had directed the Commissioner of Customs to initiate criminal proceedings against the detenu and imposed costs of Rs. 50,000/-. The Supreme Court found that the High Court's direction was unwarranted, as the issue before the High Court was the validity of the detention order and not the initiation of criminal proceedings. The Court held that the High Court's direction was beyond the scope of the writ petition and set it aside.

Conclusion:
The Supreme Court set aside the impugned order of the High Court and quashed the detention order issued by the Joint Secretary (COFEPOSA). The Court ordered the immediate release of the detenu if he was not required in any other case. The appeal was allowed.

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