Case Note & Summary
The Bombay High Court allowed two habeas corpus petitions challenging preventive detention orders dated 21 February 2013 issued under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The petitioners were the wife of detenu Sukhdev Gorde and a friend of detenu Jamshed Khan. The detenus were involved in smuggling red sanders (red sandalwood) from Jawaharlal Nehru Port Trust (JNPT) to Dubai. The detaining authority alleged that the detenus were part of a syndicate that attempted to export red sanders in a container. The court held that the detention orders were invalid because the detaining authority failed to consider whether less restrictive alternatives, such as imposing conditions on bail or other preventive measures, would be sufficient to prevent future smuggling. The court also found that the detenus were denied their right to make an effective representation under Article 22(5) of the Constitution because certain documents relied upon by the detaining authority were not supplied to them. The court emphasized that preventive detention is an exceptional measure and must be used only when no other remedy is adequate. The petitions were allowed, and the detention orders were quashed. The detenus were ordered to be released forthwith unless required in any other case.
Headnote
A) Preventive Detention - COFEPOSA - Less Restrictive Alternatives - Section 3(1) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Detaining authority must consider whether bail conditions or other measures can prevent future smuggling before ordering preventive detention - Held that failure to consider less restrictive alternatives vitiates the detention order (Paras 10-15). B) Preventive Detention - Right to Representation - Article 22(5) Constitution of India - Detenu has right to receive all documents relied upon by detaining authority to make effective representation - Non-supply of such documents violates constitutional guarantee - Held that detention order is invalid if relied-upon documents are not furnished (Paras 16-20). C) Preventive Detention - Subjective Satisfaction - Non-Application of Mind - Section 3(1) COFEPOSA - Detaining authority must apply its mind to all relevant material - Failure to consider less restrictive measures indicates non-application of mind - Held that detention order is unsustainable (Paras 10-15).
Issue of Consideration
Whether the detention orders under COFEPOSA were valid when the detaining authority failed to consider less restrictive alternatives and whether the detenus were denied effective representation due to non-supply of relied-upon documents.
Final Decision
Both writ petitions are allowed. The detention orders dated 21 February 2013 are quashed and set aside. The detenus, Sukhdev Gorde and Jamshed Khan, are ordered to be released forthwith unless required in any other case.
Law Points
- Preventive detention is an exceptional measure
- less restrictive alternatives must be considered
- subjective satisfaction must be based on material
- right to make representation includes right to receive documents relied upon
- non-application of mind vitiates detention order
