9911796707
TMI Blog2020 (6) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... On verification, it was revealed that the petitioner was holding a Malaysian Passport Number A36434097 issued on 05.10.2015 in Malaysia. The personal belongings of the petitioner - two number of hand baggage viz., one black colour shoulder bag and one purple colour stroller suitcase were examined in the presence of witnesses. On further examination of the black colour shoulder bag, three small purses were recovered. On opening the three purses, each purse contained a bundle wrapped up with adhesive tape. On opening the bundle, 12 numbers of yellow colour metallic cut bars totalling weighing 6478 grams were recovered. On suspicion that the metallic bars so recovered could be gold bars, a Government approved gold appraiser was summoned to examine the same. Accordingly Gopi Achari, an approved gold appraiser examined the bars and certified them as 24 k pure gold totalling weighing 6478 grams and valued at Rs. 2,52,51,244/- at the rate of Rs. 3,898/- per gram. The gold bars were therefore seized by way of a Mahazar dated 25.08.2019 as required under Section 110 of the Customs Act for pursuing necessary action under Customs Act read with Foreign Trade (Development and Regulation) Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent, invoking Section 3 (1) of the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) Act, 1974 clamped the order of detention dated 11.10.2019 against the petitioner. Challenging the order dated 11.10.2019, the present Habeas Corpus Petition is filed. 4. Mr. N.R. Elango, learned Senior counsel appearing for the petitioner invited our attention to para No.v of the detention order dated 11.10.2019 and contended that in order to show that the detaining authority has arrived at a subjective satisfaction to clamp the order of detention, reliance was placed by the detaining authority to the orders of remand. According to the learned Senior counsel for the petitioner, the petitioner was remanded on 25.08.2019 and her remand was extended on 03.09.2019, 07.09.2019, 19.09.2019, 20.09.2019, 27.09.2019 and 01.10.2019. The petitioner, in order to submit an effective representation for revocation of the order of detention, has submitted a representation dated 08.11.2019 to the respondents requesting to furnish her the copies of the remand orders, but the same has not been furnished to her. The non-furnishing of the orders of remand to the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. 7. The continued detention of the detenue in this case, therefore, cannot be considered as a legal, after the deteneu's right to make an effective representation had been prejudiced by reason of non-supply of remand order which had been sought by the detenue and which had been wrongly refused to be supplied by the detaining authority." 5. By placing reliance on the aforementioned decision of this Court, the learned Senior counsel for the petitioner would contend that the fact that the detenue has been denied the copies of the remand is explicit inasmuch as it has not been denied by the respondents herein. 6. The learned Senior counsel for the petitioners also invited our attention to para No.12 of the counter affidavit filed by the respondents 1 and 2 to contend that the respondents have made reference to the request made by the petitioner to furnish the copies of the orders of remand. At the same time, there is no reference made in the counter to the effect that the orders of remand were furnished to the petitioner. Thus, admittedly, the orders of remand passed by the learned Judicial Magistrate were not furnished to the petitioner herein and it had prevented her from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the remand order was not placed before the detaining authority, the substance of the same was placed. We are not in complete agreement with the High Court that non-placing of the remand order before the detaining authority has in no way affected either the subjective satisfaction of the authority or the detenu's right to make a detailed representation." 8. By relying on the aforesaid decision of the Honourable Supreme Court, the learned Standing counsel for the respondents would contend that nonhttp:// furnishing of the orders of remand will not vitiate the order of detention passed against the detenue and he prayed for dismissal of the Habeas Corpus Petition. 9. We have given our anxious consideration to the rival submissions made. Though very many contentions have been raised by the counsel for both sides, the core contention urged on behalf of the petitioner is that the respondents, inspite of request made, did not furnish the copies of the orders of remand which had deprived the fundamental right of the petitioner to submit an effective representation to revoke the order of detention passed against her. In this context, our attention was drawn to the representation da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... materials collected against her during the course of investigation when she was under incarceration. In fact, the decision relied on by the learned Senior counsel for the petitioner in Chinna Ponnu's case cited supra squarely apply to the facts of the case. 11. On the other hand, in the decision relied on by the learned Standing counsel for the respondents, the Honourable Supreme Court had an occasion to consider as to what would be the effect of the non-furnishing of the copy of the orders of remand for consideration of the detaining authority. In that case before the Honourable Supreme Court, admittedly, the full text of the remand order was not placed before the detaining authority, but the substance of the same was placed. Therefore, in those circumstances, it was held by the Honourable Supreme Court that the detaining authority, who passed the order of detention, will be in possession of several other materials, including the substance of the order of remand and consequently, the order of detention is not vitiated by reason of not placing the entire text of the orders of remand. This decision cannot be made applicable to this case. In the present case, as we have already ..... X X X X Extracts X X X X X X X X Extracts X X X X
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