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TMI Blog2009 (3) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - 563 of 2009 - - - Dated:- 27-3-2009 - Dalveer Bhandari and P. Sathasivam, JJ. [Judgment per : P. Sathasivam, J.]. - Leave granted. 2. This appeal is directed against the judgment dated 5-9-2008 passed by the High Court of Delhi in W.P. (Crl.) No. 782 of 2008 which was filed by Pooja Batra wife of Deepak Kumar @ Deepak Batra detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "the COFEPOSA Act") praying for issuance of a writ of Habeas Corpus to release the detenu i.e. her husband from detention. The High Court, by the said judgment, dismissed the writ petition with costs of Rs. 50,000/- on her and directed the department to initiate criminal proceedings against the detenu under Sections 199, 420, 468 and 471 of the Indian Penal Code in exercise of its power under Section 482 of the Code of Criminal Procedure. 3. The case of the department is as follows : (a) The Detaining Authority has issued the detention o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 3 of the COFEPOSA Act. Before the High Court, various contentions such as non-application of mind on the part of the Detaining Authority, consideration of irrelevant material, reliance on extraneous material, non-supply of relevant and relied on materials, delay in passing detention order and delay in disposal of representation etc. were raised. The High Court, by the impugned order dated 5-9-2008, dismissed her writ petition. Questioning the same, she filed the present appeal by way of special leave petition. 4. Heard Mr. R.S. Sodhi, learned senior counsel for the appellant and Mrs. K. Amreshwari, learned senior counsel for the respondents. 5. Mr. R.S. Sodhi, learned senior counsel for the appellant after taking us through the grounds of detention order, impugned order of the High Court dismissing the writ petition of the appellant and all other connected materials contended that (a) The detention order is liable to be quashed on the ground of non-application of mind and non-supply of materials relied on and acted upon by the Detaining Authority while passing the detention order. (b) The Detaining Authority relied on extraneous and irrelevant materials. (c) The of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay so as to snap the link between the incident and the alleged potentiality of the detenu in indulging in smuggling activity. Hence, we reject the said contention. (b) Coming to the contention relating to delay in disposal of the representation, it is true that whenever a representation is made either by the representative of the detenu or by the detenu himself, it is incumbent on the part of the named authority to consider, dispose of the same and pass appropriate orders and communicate it without any unreasonable delay. However, it depends upon the facts and circumstances of each case. In the instant case, the detenu has taken the plea that he made a representation to the Secretary, Government of India as suggested in the detention order on 13-6-2008 which was received by the Suptd. of Jail on 16-6-2008, and on the very same day it was forwarded to COFEPOSA Department. It is the contention of the counsel for the appellant that though the representation was sent to the COFEPOSA Department on 16-6-2008 itself and the fact that the Jail and COFEPOSA Department both located in Delhi yet it took time for more than ten days to respond in obtaining the comments from the sponsoring aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority is satisfied with the materials placed before it. There is no dispute that even for a solitary instance if sufficient materials are available and if the Detaining Authority is subjectively satisfied that the detenu is indulging in smuggling activities which is detrimental to the interest of the Department, the detention order can be clamped. However, perusal of the grounds of detention order dated 5-12-2007 as well as the counter affidavit sworn to by the Joint Secretary to the Govt. of India, Ministry of Finance, Department of Revenue dated 12-12-2008 amply demonstrate that the Detaining Authority has based its conclusion not only with reference to Bill of Entry No. 589144 dated 25-4-2007 but also relating to eight Bills of Entry/Consignments cleared earlier. The detention order, Annexure P-2, is available at page 97 of the paper book. In the order apart from narration of various materials as to the seizure of goods dated 25-4-2007 the Detaining Authority has adverted to and relied upon the clearance of eight consignments. In paragraph 18 of the detention order, there is a specific reference to those facts which reads as under : "M/s P.P. Datta, Wg. Cdr. (Retd.), the CHA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that out of eight consignments only five of the 10% of the checking of goods alone were verified by the Department, the fact remains that firstly nothing prevented the concerned officer from verifying the entire consignment as it was done in the case of Bill of Entry No. 589144 dated 25-4-2007 and secondly there was a valid order for clearance by the officer concerned. No doubt, the department is free to reopen the issue but the fact remains that on the date of passing the detention order it was only at the stage of notice and no final decision/conclusion was taken for violation of the provisions of the Customs Act. In such circumstances, reliance on those materials which is evident from paragraph 32 read with S.No. 33 of Annexure P-4 clearly demonstrate that Detaining Authority has considered irrelevant materials while formulating the grounds of detention. As pointed out above though the counsel for the respondents submitted that the Detaining Authority has considered only in respect of Bill of Entry No. 589144 dated 25-4-2007 for passing detention order, it is clear that apart from the reference in the detention order itself about the eight consignments, paragraph 5(1) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prove that the said material and such vitally relevant aspect was either adverted to or really considered before passing the order of detention and taking note of the fact that the detention order suffers the vice of the total non-application of mind to a relevant and vital material touching question of the culpability as well as the necessity to order the detention of the petitioner, quashed the same and allowed the writ petition. It is settled law that Courts exercising powers of judicial review do not consider the challenge to an order of detention as if on an appeal, re-appreciating the materials, yet since an order of detention in prison involves the fundamental rights of citizens, freedom of movement and pursuit of normal life and liberty, no absolute immunity can be claimed by the authorities as to the decision arrived and it is open to the Courts to see whether there has been due and proper application of mind and that all the relevant and vital materials for the purpose have been noticed, adverted to and considered. If we consider the case on hand on the above principles, though, the Detaining Authority has relied on the import of eight consignments, the fact remains that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds, etc. — The following goods brought from a place outside India shall be liable to confiscation :- (a) any goods imported by sea or air which are unloaded or attempted to be unloaded at any place other than a customs port or customs airport appointed under clause (a) of section 7 for the unloading of such goods; (b) any goods imported by land or inland water through any route other than a route specified in a notification issued under clause (c) of section 7 for the import of such goods; (c) any dutiable or prohibited goods brought into any bay, gulf, creek or tidal river for the purpose of being landed at a place other than a customs port; (d) any goods which are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force; (e) any dutiable or prohibited goods found concealed in any manner in any conveyance; (f) any dutiable or prohibited goods required to be mentioned under the regulations in an import manifest or import report which are not so mentioned; (g) any dutiable or prohibited goods which are unl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of detention which would indicate that any of the said earlier imports were effected in contravention of any of the provisions of the Customs Act, 1962, or that they could have been regarded as having been smuggled into the country within the meaning of Section 2(39) of the said Act. Except notice for reopening the order clearing eight consignments prior to Bills of Entry dated 25-4-2007, there is no adjudication and final order by the authority concerned. In other words, the reference to alleged violation of the Customs Act in respect of import of eight consignments which was only at the pre-mature stage and considering extraneous materials, which are inconclusive cannot be a valid ground for clamping detention under COFEPOSA Act. Inasmuch as, the Detaining Authority has extensively relied upon the allegations that the detenu was involved in the import of eight consignments through M/s P.P. Dutta, reliance on those irrelevant material vitiates the detention order. This is more so as the said alleged earlier imports, apparently constitute the main basis for the opinion formed by the Detaining Authority that the detenu had the propensity and potentiality to indulge in smu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order of detention which would indicate that any of the said earlier imports was effective in contravention of any of the provisions of the Customs Act, 1962 or that they could have been regarded as having been smuggled into the country within the meaning of Section 2(39) of the said Act. In such a case, as held by this Court in Chowdarapu Raghunandan (supra), the invocation of the COFEPOSA Act against such a person would not be justified. 13. Apart from these aspects, 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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