2012 (8) TMI 941 - HC - Customs

Smuggling - detention with a view to prevent him from indulging into the smuggling activities in future - seizure of red sanders - right of representation - Held that - the detenu has no right to appear through a legal practitioner in the proceedings before the Advisory Board. It is, however, necessary to add an important caveat. The reason behind the provisions contained in Article 22(4) (b) of the Constitution slate is that a legal practitioner should not be permitted to appear before the Advisory Board for any party. The Constitution does not contemplate that the detaining authority or the Government should have the facility of appearing before the Advisory Board with the aid of a legal practitioner but that the said facility should be denied to the detenu. In any case, that is not what the Constitution says and it would be wholly inappropriate to read any such meaning into the provisions of Article 22. Permitting the detaining authority or the Government to appear before the Advisory Board with the aid of a legal practitioner or a legal adviser would be in breach of Article 14, if a similar facility is denied to the detenu. We must therefore make it clear that if the detaining authority or the Government takes the aid of a legal practitioner or a legal adviser before the Advisory Board, the detenu must be allowed the facility of appearing before the Board through a legal practitioner. The embargo on the appearance of legal practitioner should not be extended so as to prevent the detenu from being aided or assisted by a friend who, in truth and substance, is not a legal practitioner. Every person whose interests are adversely affected as a result of the proceedings which have a serious import, is entitled to be heard in those proceedings and be assisted by a friend. What is alleged is that the detenu has been detained on the basis of illegal grounds of detention. That plea, however, is devoid of merits. For, as the order of detention gives correct detention order number, as also even the opening part of the grounds of detention gives the same number coupled with the fact that the circumstances and material referred to in the grounds of detention and the documents accompanying thereto pertain to the present detenu and none else - there is no substance in the grievance that the subjective satisfaction is vitiated because of such variation in the grounds of detention or for that matter affecting the right of detenu to make effective representation, in any manner. Is the detenu a habitual offender? - Held that - the fact that the previous detention order passed in the year 2008 against the detenu having been quashed by the High Court, assuming that it cannot be taken into account, even then, it would not affect the subjective satisfaction reached by the Detaining Authority in its entirety. That can be extricated from consideration keeping in mind the provisions of section 5A of the Act. We would consider the alternative argument of the Advocate General raised across the Bar regarding the scope and application of section 5A of the Act a little later. Suffice it to observe that the grounds of detention, if read as a whole, in the fact situation of the present case, it is not possible to countenance the argument that the subjective satisfaction formed by the Detaining Authority is vitiated because of reference to past arrests in 2003 and 2004 and detention order in 2008. The detenu, in the perception of the Detaining Authority, is, the kingpin of the organised syndicate; and indulges in smuggling of red sanders by using forged bottles, seals of various central excise offices and shipping lines used for sealing the export containers. The red sanders is an endangered species and is covered under the Convention of International Trade and Endangered Species of Wild Fauna and Flora. Export of red sanders is prohibited under the EXIM policy. The Detaining Authority was conscious of the fact that the detenu was arrested in connection with the latest seizure of huge quantity of red sanders as also unaccounted cash but was released on bail. In that case, the Detaining Authority was aware that the ordinary law of the land was insufficient to avert the criminal activities of the organised syndicate in future which was detrimental to the national interest. Petition dismissed - decided against petitioner.

Issues Involved:
1. Denial of right to effective representation before the Advisory Board.
2. Variance in the detention order and grounds of detention.
3. Non-consideration of representations made by the detenu.
4. Subjective satisfaction of the Detaining Authority.
5. Procedural lapses and non-application of mind by the Detaining Authority.
6. Consideration of documents and grounds for detention.
7. Application of Section 5A of the COFEPOSA Act.

Detailed Analysis:

1. Denial of Right to Effective Representation Before the Advisory Board:
The detenu's wife argued that the detenu was denied the right to make effective and equal representation before the Advisory Board, which was discriminatory and violative of Articles 14, 21, and 22 of the Constitution. The detenu requested an adjournment to arrange for legal representation, which was not granted. The court found that the detenu, despite being informed of his rights, chose to argue his case personally and did not make an oral request for adjournment. The court held that the detenu's conscious decision to proceed without an advocate did not vitiate the proceedings.

2. Variance in the Detention Order and Grounds of Detention:
The petitioner contended that the variance in the detention order number and the grounds of detention indicated a casual approach by the Detaining Authority, affecting the detenu's right to make effective representation. The court found the variance to be a typographical error and not substantial enough to affect the detenu's rights. The grounds of detention and the documents pertained to the detenu, and the error did not impact the subjective satisfaction of the Detaining Authority.

3. Non-Consideration of Representations Made by the Detenu:
The detenu made four representations before the issuance of the detention order, but the latter two were not considered by the Detaining Authority. The court noted that the latter two representations were received after the detention order was passed. The court held that the Detaining Authority was not obliged to consider pre-issuance representations as they were not addressed to the Sponsoring Authority or the Detaining Authority.

4. Subjective Satisfaction of the Detaining Authority:
The petitioner argued that the subjective satisfaction was vitiated due to reliance on past arrests and a quashed detention order. The court found that the grounds of detention, read as a whole, indicated that the Detaining Authority was aware of the quashed detention order and the past criminal activities were relevant for forming subjective satisfaction. The court held that the subjective satisfaction was based on recent prejudicial activities and not solely on past events.

5. Procedural Lapses and Non-Application of Mind by the Detaining Authority:
The petitioner contended that the Detaining Authority considered the proposal in a piecemeal manner and could not have formulated the grounds in a short span of time. The court found that the Detaining Authority considered all materials, including further generated documents, before forming subjective satisfaction. The court held that the grounds of detention were formulated contemporaneously and the process was not vitiated.

6. Consideration of Documents and Grounds for Detention:
The petitioner argued that the inclusion of blank pages and repeated documents indicated non-application of mind. The court held that the blank pages were part of the register and could not be separated. The repeated documents did not affect the subjective satisfaction as the Detaining Authority considered all relevant materials. The court found no merit in the argument that the detenu was misled or his rights were affected.

7. Application of Section 5A of the COFEPOSA Act:
The court considered the argument that the non-mention of the quashed detention order in paragraph 23 of the grounds of detention could be fatal. The court held that even if one ground was found to be invalid, the detention order could still be sustained on the remaining grounds under Section 5A of the COFEPOSA Act. The court found that the grounds of detention referred to multiple prejudicial activities, and the detention order was valid.

Conclusion:
The court dismissed the petition, holding that the detention order was valid, and the subjective satisfaction of the Detaining Authority was not vitiated. The procedural lapses and typographical errors did not affect the detenu's rights or the legality of the detention order.

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