1986 (8) TMI 315 - HC - Customs

Summary

Issues:
Detention under COFEPOSA Act, Right to lead evidence in rebuttal before Advisory Board, Deprivation of valuable right to represent case effectively before appropriate Government.

Detention under COFEPOSA Act:
The petitioner challenged his detention under the COFEPOSA Act, alleging that the order was passed to prevent him from abetting smuggling activities. The grounds of detention stated that the petitioner was associated with a notorious smuggler and was involved in concealing and dealing with smuggled goods. Various premises linked to the petitioner were searched, leading to the recovery of incriminating evidence and currency. The petitioner contended that his detention was illegal due to procedural lapses.

Right to lead evidence in rebuttal before Advisory Board:
The detenu argued that he was denied a reasonable opportunity to rebut the allegations during the Advisory Board proceedings. He had brought witnesses to prove that the seized currency was legitimate earnings, but the Advisory Board refused to examine them. The detenu relied on a Supreme Court judgment recognizing the detenu's right to present evidence in rebuttal. The failure to allow the witnesses to testify compromised the detenu's ability to effectively challenge the grounds of detention.

Deprivation of valuable right to represent case effectively before appropriate Government:
The counter-affidavit filed by the respondents acknowledged that the detenu had requested the examination of witnesses to rebut the grounds of detention. The Advisory Board rejected this request, stating that the witnesses would not affect their opinion. The judgment highlighted that the discretion to confirm or revoke the detention order rested with the appropriate Government, even if the Advisory Board favored detention. The detenu's inability to present crucial evidence before the Advisory Board and the subsequent deprivation of the right to effectively represent his case before the appropriate Government rendered the continued detention unlawful.

The judgment emphasized the importance of allowing detenus to lead evidence in rebuttal before the Advisory Board to ensure a fair process. It cited precedents where the failure to examine witnesses led to the quashing of detention orders. Ultimately, the court ruled in favor of the petitioner, quashing the detention order and ordering the detenu's immediate release due to the deprivation of his valuable right to effectively represent his case before the appropriate Government.