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2016 (4) TMI 1247 - HC - CustomsDoctrine of Habeas Corpus - Detention of petitioners - smuggling of gold - baggage rules - section 3[1][i] of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Held that: - it is not in dispute that the detenus, in their bail applications have retracted the inculpatory statements given to the authorities. But, in paras 11 & 12 of the counter affidavit filed by the first respondent, it is stated that the detenus have given voluntary statements and no retractions of statement have been made. No written retractions were made either when they were in jail or when they were out on bail or during the course of investigation, hence, the consideration of the retraction does not arise. Further, the detention order is silent about the retraction. The detention order is being passed as if the detenu I Om Prakash attempted to bring 23 kilograms of gold without proper declaration and it is also mentioned in the grounds of detention, however the declaration card was neither placed before the detaining authority nor supplied to the detenu despite asked for in the representation dated 29.09.2015. In the counter affidavit, it is stated that the documents relied upon were supplied to the detenu. However, in the rejection order dated 28.10.2015, nothing is mentioned about supply of declaration card - It is settled law that the detaining authority should furnish all relevant and relied upon documents to the detenu to enable him to make effective representation. Further all documents which are relevant which would have bearing on the issue, which are likely to affect the mind of the detaining authority should be placed before it. In this case, the detention order would disclose that the detaining authority relies on the declaration card. However, it was neither placed before the detaining authority nor supplied to the detenu to make further representation to the advisory board. Impoundment of passport of detenues - the passports of the detenus have been impounded by the authorities after their arrest - Held that: - when there was no material placed before the detaining authority that there is likelihood of detenus indulging in smuggling activities in future, the subjective satisfaction arrived at by the detaining authority is based on no material. Detention order passed is set aside - petition allowed - decided in favor of petitioner.
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