Case Note & Summary
The petitioner, Balbir Kaur, acting as next friend of the detenu Inderjeet Hunjun, filed a criminal writ petition challenging an order of detention dated 6-2-2004 passed by respondent No.2 under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act). The detention order was based on an incident on 5-9-2003 when the detenu and one Tejpal Singh were intercepted at Santacruz domestic airport, Mumbai, carrying computer parts suspected to be smuggled goods. The customs authorities seized the goods and recorded statements under Section 108 of the Customs Act, 1962, leading to their arrest on 7-9-2003. The petitioner challenged the detention order on two grounds: first, that the representation dated 7-9-2004 made by the detenu through his advocate was not considered before passing the order, and second, that the order disclosed total non-application of mind by the detaining authority. The court noted that the facts and contentions were identical to those in Criminal Writ Petition No.1714 of 2004 (Tejpal Mann Singh), which was disposed of on 12-1-2005. The court held that the non-consideration of the representation and the non-application of mind vitiated the detention order, and accordingly quashed the same.
Headnote
A) Preventive Detention - COFEPOSA Act - Non-Consideration of Representation - Section 3(1) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Detenu's representation dated 7-9-2004 was not considered before passing detention order - Held that non-consideration of representation vitiates the detention order (Paras 2-3). B) Preventive Detention - COFEPOSA Act - Non-Application of Mind - Section 3(1) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Detention order disclosed total non-application of mind by the authority - Held that order is liable to be quashed on this ground as well (Paras 2-3).
Issue of Consideration
Whether the detention order under Section 3(1) of COFEPOSA Act, 1974 is liable to be quashed on grounds of non-consideration of representation dated 7-9-2004 and non-application of mind by the detaining authority.
Final Decision
The court quashed the detention order dated 6-2-2004 passed under Section 3(1) of COFEPOSA Act, 1974.
Law Points
- Non-consideration of representation vitiates detention order
- Non-application of mind by detaining authority
- Preventive detention under COFEPOSA Act requires strict compliance with procedural safeguards
