1986 (9) TMI 201 - SC - Indian Laws

Detention order dated December 11 1985 under section 3(1) read with section 2(f) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 hereinafter referred to as the COFEPOSA ACT challenged Held that - The report of the Advisory Committee was considered by the confirming authority. In the circumstances it cannot be said that the confirming authority had not applied his mind to the evidence of the defence witness as contended on behalf of the appellant. It will not be unreasonable to presume that all the records including the deposition of the said M.L. Khanna were before the confirming authority. It will be a mere surmise to hold that the confirming authority had not applied his mind to the deposition of the defence witness even though such deposition has been referred to in the report of the Advisory Committee. The contention in our opinion is without any substance and is rejected. No other point has been urged on behalf of the appellant. Appeal dismissed.

Summary

Issues:
1. Validity of detention under the COFEPOSA Act.
2. Consideration of representation by declaring authority.
3. Legality of continued detention without Advisory Board consideration.
4. Delay in providing information to the detenu.
5. Consideration of defense witness deposition by confirming authority.
6. Constitutional validity of section 9 of the COFEPOSA Act.

Detailed Analysis:

1. The judgment dealt with the validity of the detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act). The detenu, a clearing agent, was involved in importing gold biscuits in air conditioners for the Afghan Embassy. The detention order was challenged by the wife of the detenu through a writ petition under Article 226 and a special leave petition under Article 32 of the Constitution of India. The detention was based on the discovery of gold biscuits in an air conditioner imported by the detenu.

2. The first issue addressed was whether the declaring authority considered the detenu's representation before making the declaration under section 9(1) of the COFEPOSA Act. The representation was rejected, and the declaration was made on the same day. The appellant contended that the representation was not considered, but the court found that the declaring authority did consider the representation before making the declaration based on the facts presented.

3. The next issue involved the legality of continued detention without the Advisory Board's consideration. The Advisory Board had concluded that there was sufficient cause for the continued detention of the detenu. The appellant's argument on this point was not pressed further due to the Board's observation.

4. The judgment also addressed the delay in providing information to the detenu, which was raised as a ground for challenging the legality of the detention. The court found that the information requested by the detenu was provided with reasonable promptness, and there was no unjustified delay in the process.

5. Another issue raised was the consideration of the defense witness deposition by the confirming authority. The defense witness's evidence was referred to in the report of the Advisory Committee, which was considered by the confirming authority. The court held that it was not necessary for the Advisory Board to detail the evidence in its report, presuming that all records were before the confirming authority.

6. Lastly, the constitutional validity of section 9 of the COFEPOSA Act was challenged but not pressed by the appellant during the proceedings. The court dismissed the appeal and discharged the rule nisi, with no order as to costs, based on the detailed analysis and findings on the various issues raised during the case.