Case Note & Summary
The petitioner, Mahesh V. Amesur, cousin of Jeetu Shankarlal Chhapru, filed a writ of habeas corpus under Article 226 of the Constitution challenging a preventive detention order dated 9 July 2015 issued by the Principal Secretary to the Government of Maharashtra under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The detention order was based on an incident on 4 October 2014 when Chhapru arrived from Bangkok and was intercepted by the Air Intelligence Unit at Mumbai airport. He was found to have concealed two gold bars weighing 288 grams valued at Rs.7,10,519/- in his rectum, which he excreted after being taken to a toilet. The gold was seized under the Customs Act, 1962. Chhapru was arrested and remanded to judicial custody. The detaining authority, while issuing the detention order, noted that Chhapru was in custody but stated that there was a likelihood of his being released on bail and that he would continue his smuggling activities. The petitioner argued that the detention order was invalid because the detaining authority did not properly consider that Chhapru was already in custody and that ordinary law was sufficient to prevent him from engaging in smuggling. The court examined the grounds of detention and found that the detaining authority had merely reproduced the fact of custody without any meaningful consideration of whether the ordinary law could deal with the situation. The court held that the subjective satisfaction of the detaining authority was not based on a proper application of mind to all relevant circumstances, including the possibility of dealing with the detenu under ordinary law. The court quashed the detention order and directed the release of Chhapru forthwith.
Headnote
A) Preventive Detention - COFEPOSA - Section 3(1)(i) - Validity of Detention Order - Detenu in Custody - The detaining authority must consider whether the detenu is already in custody and whether ordinary law is sufficient to prevent future prejudicial activities; failure to do so amounts to non-application of mind and vitiates the detention order. (Paras 1-20) B) Preventive Detention - COFEPOSA - Section 3(1)(i) - Subjective Satisfaction - The subjective satisfaction of the detaining authority must be based on a careful consideration of all relevant facts, including the possibility of dealing with the detenu under ordinary law; a mechanical reproduction of grounds without independent application of mind renders the order invalid. (Paras 10-18) C) Constitutional Law - Article 226 - Habeas Corpus - The High Court can examine the validity of a preventive detention order and quash it if the detaining authority has not applied its mind to relevant considerations, such as the detenu's custody status and the adequacy of ordinary law. (Paras 1, 20)
Issue of Consideration
Whether the preventive detention order under Section 3(1)(i) of COFEPOSA was valid when the detenu was already in judicial custody and the detaining authority did not consider the possibility of dealing with him under ordinary law.
Final Decision
The court allowed the petition, quashed the detention order dated 9 July 2015, and directed the release of the detenu Jeetu Shankarlal Chhapru forthwith.
Law Points
- Preventive detention under COFEPOSA requires application of mind to all relevant circumstances
- including whether the detenu is already in custody and whether ordinary law is sufficient
- failure to consider less restrictive alternatives vitiates the detention order
- subjective satisfaction must be based on cogent material and not be mechanical.
