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2017 (7) TMI 73 - HC - FEMADetention orders - Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short COFEPOSA Act ) against the husband of the petitioner - Held that - We have discussed the role and position of the detenue in the smuggling ring. The detenue was not a mere carrier and was in-charge of the Delhi operations of the racket as the kingpin Sh.Narendra Kumar Jain was based in Guwahati. It is clear that the activities of the detenue were of a serious nature and perpetrated with a great deal of expertise and coordination. The activities were of a massive scale and had been continuing for about two years. This had led to the detaining authority satisfying itself about the propensity and potentiality of the detenue to further indulge in such activities. Hence, it is clear that the ordinary law of the land was insufficient to curtail the activities of the detenue and the resort to the law of preventive detention was justified.
Issues Involved:
1. Failure to provide grounds and documents in vernacular. 2. Subjective satisfaction having been wrongly arrived at. 3. Misplaced reliance on the statement of Sh. Narendra Kumar Jain. 4. Failure to inform family members of detenue. 5. Resort to preventive detention when ordinary law is sufficient to deal with the situation. 6. Failure of the respondents to decide the representation dated 09.12.2016. Detailed Analysis: FAILURE TO PROVIDE GROUNDS AND DOCUMENTS IN VERNACULAR The petitioner contended that the grounds of detention and the documents were not supplied within the stipulated time and in a language known to the detenue, violating Article 22(5) of the Constitution. The respondents argued that the documents were served within the extended time frame and in Hindi, as the detenue was found to understand Hindi better. The court held that the grievance was factually incorrect, as the documents were indeed served within the permissible time and in the language known to the detenue. The court referenced the principle that the grounds must be communicated effectively and within the time frame provided under Section 3(3) of the COFEPOSA Act, which was adhered to in this case. SUBJECTIVE SATISFACTION HAVING BEEN WRONGLY ARRIVED AT The petitioner argued that the detaining authority did not act independently and the detention order was passed without proper application of mind. The respondents countered that the detaining authority worked overtime due to the urgency of the matter and examined all documents before passing the order. The court found that the detaining authority had indeed applied its mind and the subjective satisfaction was based on substantial material, including the involvement of the detenue in smuggling activities since 2014. The court emphasized that it cannot substitute its opinion for that of the detaining authority if the grounds are precise and relevant. MISPLACED RELIANCE ON THE STATEMENT OF SH. NARENDRA KUMAR JAIN The petitioner claimed that the detention order was based on the retracted statement of Sh. Narendra Kumar Jain, which was allegedly extorted. The respondents clarified that both the statement and its retraction were placed before the detaining authority. The court held that the detaining authority could rely on the confessional statement provided the retraction was also considered. The court found no merit in the petitioner's contention, as the detention order was corroborated by multiple statements and records. FAILURE TO INFORM FAMILY MEMBERS OF DETENUE The petitioner contended that the authorities failed to inform the family members of the detenue about his detention, violating Article 21. The respondents provided evidence that the detenue's wife was informed on the day of detention. The court found the petitioner's contention factually incorrect, as the procedural safeguards were adhered to. RESORT TO PREVENTIVE DETENTION WHEN ORDINARY LAW IS SUFFICIENT TO DEAL WITH THE SITUATION The petitioner argued that preventive detention was unnecessary as the ordinary law was sufficient. The court referenced previous judgments, emphasizing that preventive detention is an exceptional measure and should be used sparingly. However, given the scale and continuity of the smuggling activities, the court found that the ordinary law was insufficient and the resort to preventive detention was justified. FAILURE OF THE RESPONDENTS TO DECIDE THE REPRESENTATION DATED 09.12.2016 The petitioner argued that the failure to decide the representation dated 09.12.2016 violated Article 22(5). The respondents admitted the oversight but argued that the second representation covered the same grounds. The court noted that the right to make a representation is crucial, but successive representations on the same grounds need not be decided. The court found that the second representation was detailed and included all grounds from the first, thus the failure to decide the first representation did not vitiate the detention. Conclusion: The court dismissed the writ petition, finding no merit in the grounds urged by the petitioner. The detention order was upheld as being based on substantial material and proper application of mind by the detaining authority.
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