1990 (1) TMI 72 - SC - Customs

Whether there were adequate materials for the authority being satisfied that the detenu was likely to smuggle goods? Held that - Considering the facts in the instant case the bail application and the bail order were vital materials for consideration. If those were not considered the satisfaction of the detaining authority itself would have been impaired and if those had been considered they would be documents relied on by the detaining authority though not specifically mentioned in the annexure to the order of detention and those ought to have formed part of the documents supplied to the detenu with the grounds of detention and without them the grounds themselves could not be said to have been complete. We have therefore no alternative but to hold that it amounted to denial of the detenu s right to make an effective representation and that it resulted in violation of Article 22(5) of the Constitution of India rendering the continued detention of the detenu illegal and entitling the detenu to be set at liberty in this case. Appeal is allowed and the detenu is to be set at liberty

Issues Involved:
1. Delay in passing the detention order.
2. Delay in execution of the detention order.
3. Non-supply of bail application and bail order.
4. Validity of the declaration under Section 9(1) of the COFEPOSA Act.

Detailed Analysis:

1. Delay in Passing the Detention Order:
The appellant contended that there was an inordinate delay between the event of interception and seizure on 30-1-1988 and the passing of the detention order on 25-6-1988, which indicated no genuine need for detention. The court noted that the proposal for detention was sent by the Collector of Customs on 27-5-1988, and the Screening Committee meeting was postponed to 21-6-1988. The delay was attributed to the thorough investigation required by the Customs authorities. The court held that the delay did not snap the nexus between the smuggling act and the detention order, and the grounds did not become stale. The court referred to several precedents, including Ashok Narain v. Union of India, Rekhaben Virendra Kapadia v. State of Gujarat, and Rajendrakumar Natvarlal Shah v. State of Gujarat, to support its conclusion that the delay was justified and did not invalidate the detention order.

2. Delay in Execution of the Detention Order:
The appellant argued that the delay of 38 days in executing the detention order indicated no genuine need for detention. The court noted that the Home Secretary had sent instructions for immediate execution on 27-6-1988, followed by a reminder on 19-7-1988. The Superintendent of Police reported on 27-7-1988 that the detenu was absconding, and the order was finally executed on 2-8-1988. The court found no reason to disbelieve the police's statement that the detenu was not found earlier and held that the delay was adequately explained. The court referred to precedents such as Bhawarlal Ganeshmalji v. State of Tamil Nadu and Shafiq Ahmad v. District Magistrate, Meerut, to support its conclusion that the delay did not invalidate the detention order.

3. Non-Supply of Bail Application and Bail Order:
The appellant contended that the non-supply of the bail application and bail order violated his right to make an effective representation. The court noted that the bail application and bail order were placed before the detaining authority, and their non-supply amounted to a denial of the detenu's right to make an effective representation. The court referred to several precedents, including Mangalbhai Motiram Patel v. State of Maharashtra, Mehrunissa v. State of Maharashtra, and Mohd. Zakir v. Delhi Administration, to support its conclusion that the non-supply of these documents violated Article 22(5) of the Constitution. The court held that the continued detention of the detenu was illegal and he was entitled to be set at liberty.

4. Validity of the Declaration under Section 9(1) of the COFEPOSA Act:
The appellant argued that the declaration under Section 9(1) of the COFEPOSA Act was invalid as the show cause notice, reply thereto, bail application, bail order, and seizure of passports were not placed before the declaring authority. The court noted that the declaration stated that the declaring authority had considered the grounds of detention and the materials served on the detenu. The court held that the satisfaction of the declaring authority was not justified as the detenu's passports were seized, making it unlikely for him to smuggle goods. The court referred to Rekhaben Virendra Kapadia v. State of Gujarat to support its conclusion that the declaration was not valid. However, the court did not express any opinion on this submission as it had already held the detention order invalid due to the non-supply of the bail application and bail order.

Conclusion:
The court set aside the detention order and the impugned judgment, allowed the appeal, and directed that the detenu be set at liberty.

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