Case Note & Summary
The petitioner, brother-in-law of the detenu Abdulla Gulam Mustafa, challenged a detention order dated 27.11.2003 issued by the Principal Secretary (Appeals and Security), Government of Maharashtra, under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The detenu was detained with a view to prevent him from smuggling goods. The factual background involves the detenu being intercepted at Sahara International Airport, Mumbai on 14.2.2003, where Indian currency of Rs.47 lakhs and foreign currency equivalent to Rs.21,65,384.60 were found in his hand baggage. Investigation revealed that the detenu was carrying the currency on instructions of one Sanjay Agarwal to hand it over to one Sai Kumar, who was to take it to Singapore. The detenu had an air ticket to Hyderabad and was to travel by an international flight. The currencies were not declared to customs. The detenu was arrested and remanded to judicial custody. The detaining authority, while passing the detention order, noted that the detenu was in judicial custody but did not consider that he had not moved for bail and there was no imminent possibility of his release. The court found that the detaining authority mechanically recorded satisfaction without application of mind, as the detenu was in custody and there was no material to suggest he would be released. Additionally, the detaining authority relied on statements of co-accused Sanjay Agarwal and Sai Kumar but did not supply these statements to the detenu. The court held that these were vital documents and their non-supply deprived the detenu of the right to make an effective representation under Article 22(5) of the Constitution. Consequently, the detention order was quashed and set aside, and the detenu was ordered to be released forthwith.
Headnote
A) Preventive Detention - COFEPOSA - Non-Application of Mind - Section 3(1) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Detaining authority failed to consider that detenu was in judicial custody and had not moved for bail, and that there was no imminent possibility of release - Held that detention order was passed mechanically without application of mind, rendering it invalid (Paras 6-8). B) Preventive Detention - Right to Make Effective Representation - Article 22(5) of Constitution of India - Non-supply of statements of co-accused Sanjay Agarwal and Sai Kumar, which were vital documents relied upon by detaining authority - Held that failure to supply these documents deprived detenu of opportunity to make effective representation, vitiating the detention order (Paras 9-10).
Issue of Consideration
Whether the detention order under Section 3(1) of COFEPOSA Act is vitiated due to non-application of mind and non-supply of vital documents, thereby infringing the detenu's right to make effective representation under Article 22(5) of the Constitution.
Final Decision
The detention order dated 27.11.2003 is quashed and set aside. The detenu Abdulla Gulam Mustafa be released forthwith unless required in any other case.
Law Points
- Non-application of mind by detaining authority
- Right to make effective representation under Article 22(5) of Constitution
- Non-supply of vital documents vitiates detention order
- Section 3(1) of COFEPOSA Act
- 1974
