Case Note & Summary
The petitioner, brother of the detenu, challenged the detention order dated 2.4.2004 passed under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The detention was based on the ground that the detenu was dealing in smuggled goods under section 3(1)(iv) of the Act. The order of detention along with grounds was served on the detenu on 13.10.2005. The detenu made a composite representation dated 18.10.2005 to the Chairman of the Advisory Board, the detaining authority, and the State Government, which was received on 19.10.2005. The representation was processed and rejected on 18.11.2005. However, the detention was confirmed by the State Government under section 8(f) of the Act on 15.11.2005, prior to the consideration and rejection of the representation. The court found that the detaining authority had not applied its mind to the representation before confirming the detention. The court held that the failure to consider the representation before confirmation vitiates the detention order, as it indicates non-application of mind. The court allowed the petition and quashed the detention order, directing the release of the detenu forthwith.
Headnote
A) Preventive Detention - COFEPOSA - Non-Application of Mind - Section 3(1)(iv), Section 8(f), Section 11 of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Detenu's representation dated 18.10.2005 was rejected on 18.11.2005, but the detention was confirmed under section 8(f) on 15.11.2005, before consideration of representation - Held that the detaining authority must consider the representation before confirming the detention; failure to do so amounts to non-application of mind and vitiates the detention order (Paras 4-6).
Issue of Consideration
Whether the detention order under section 3(1)(iv) of COFEPOSA is vitiated due to non-application of mind by the detaining authority in not considering the detenu's representation before confirming the detention under section 8(f) of the Act.
Final Decision
The petition is allowed. The detention order dated 2.4.2004 is quashed and set aside. The detenu is directed to be released forthwith.
Law Points
- Preventive detention
- COFEPOSA
- non-application of mind
- representation
- confirmation
- section 3(1)(iv)
- section 8
- section 9
- section 10
- section 11
Case Details
2006 LawText (BOM) (08) 71
Criminal Writ Petition No.2610 of 2005
Mr.Maqsood Khan for the petitioner, Mrs.A.S.Pai, Addl. Public Prosecutor for the respondents
Mahinder Singh Balwant Singh Oberai
The State of Maharashtra, Smt.Neela Satyanarayana, The Superintendent of Prison, Mumbai Central Prison, The Superintendent of Prison, Nashik Road Central Prison
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Nature of Litigation
Criminal writ petition challenging preventive detention order under COFEPOSA
Remedy Sought
Writ of habeas corpus for release of detenu
Filing Reason
Detention order under section 3(1) of COFEPOSA on ground of dealing in smuggled goods
Previous Decisions
Detention order dated 2.4.2004; representation rejected on 18.11.2005; detention confirmed under section 8(f) on 15.11.2005
Issues
Whether the detention order is vitiated due to non-application of mind by the detaining authority in not considering the detenu's representation before confirming the detention under section 8(f) of COFEPOSA.
Submissions/Arguments
Petitioner argued that the detaining authority failed to consider the detenu's representation before confirming the detention, indicating non-application of mind.
Respondents submitted that the representation was considered and rejected on 18.11.2005, but did not dispute the chronology.
Ratio Decidendi
The detaining authority must consider the representation made by the detenu before confirming the detention under section 8(f) of COFEPOSA. Failure to do so amounts to non-application of mind and vitiates the detention order.
Judgment Excerpts
The petitioner has challenged his brother’s, (hereinafter referred to as the 'detenu') detention by order of detention dated 2.4.2004 under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.
From the detention order itself and the grounds of detention served along with it, it is clear that the detention is to prevent the detenu from 'dealing in smuggled goods', a ground provided by section 3(1)(iv) of the Act.
The representation was processed at various stages and after considering the same, on 18.11.2005 a reply rejecting the representation was forwarded to the detenu.
The detention was confirmed under section 8(f) of the Act on 15.11.2005, i.e., before the representation was considered and rejected on 18.11.2005.
Thus, the detaining authority has not applied its mind to the representation before confirming the detention. This vitiates the detention order.
Procedural History
Detention order dated 2.4.2004 under section 3(1) COFEPOSA served on detenu on 13.10.2005. Detenu made representation dated 18.10.2005 received on 19.10.2005. Detention confirmed under section 8(f) on 15.11.2005. Representation rejected on 18.11.2005. Petitioner filed Criminal Writ Petition No.2610 of 2005 challenging detention.
Acts & Sections
- Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974: 3(1), 3(1)(iv), 8(f), 11
