Case Note & Summary
The petitioner, son of the detenu Vashdev Gobindram Adnani, challenged the detention order dated 3-11-2004 passed by the Principal Secretary to the Government of Maharashtra under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The detenu was intercepted at Mumbai airport on 20-8-2004 while attempting to board a flight to Singapore, and foreign currency equivalent to Rs.40,08,244.50 was seized from him under the Customs Act, 1962. A statement was recorded from the detenu under Section 108 of the Customs Act, wherein he claimed that the currency was brought from Singapore after due declaration and was being carried back. The detention order was executed on 2-12-2004. The petitioner contended that the detention order was based on two heads under Section 3(1)(i) and (iii) of COFEPOSA, but the detaining authority failed to apply its mind to the detenu's statement under Section 108, which was a vital piece of evidence. Additionally, the detenu was not supplied with a copy of that statement, thereby violating his right to make an effective representation under Article 22(5) of the Constitution. The respondents argued that the statement was considered and that non-supply did not prejudice the detenu. The court analyzed the grounds of detention and found that the detaining authority had not referred to or considered the Section 108 statement, which was crucial for forming subjective satisfaction. The court held that non-application of mind to a material document vitiates the detention order. Further, the non-supply of the statement infringed the detenu's constitutional right. Consequently, the court quashed the detention order and directed the detenu's release.
Headnote
A) Preventive Detention - COFEPOSA - Non-Application of Mind - Section 3(1) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Detention order quashed as detaining authority failed to consider the detenu's statement under Section 108 of Customs Act, 1962, which was crucial for forming subjective satisfaction - Held that non-consideration of material document vitiates the detention order (Paras 5-7). B) Preventive Detention - Right to Representation - Article 22(5) of Constitution of India - Non-supply of documents relied upon by detaining authority - Detenu was not supplied with the statement recorded under Section 108 of Customs Act, 1962, which was part of the grounds of detention - Held that failure to supply such document infringes the detenu's right to make effective representation (Paras 8-10).
Issue of Consideration
Whether the detention order under Section 3(1) of COFEPOSA was valid when the detaining authority failed to consider the detenu's statement under Section 108 of the Customs Act and did not supply relevant documents to the detenu.
Final Decision
The court allowed the petition, quashed the detention order dated 3-11-2004, and directed the detenu's release forthwith.
Law Points
- Preventive detention
- COFEPOSA
- non-application of mind
- non-supply of documents
- Article 22(5) of Constitution
- Section 3(1) COFEPOSA
- Section 108 Customs Act
