IMPORTANT POINT
Detention order passed in haste without there being adequate material would be vitiated.

JUDGMENT

S.B. Sinha, J.-These appeals arising out of the judgments and orders dated 04.04.2004 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Writ Petition Nos. 1397 and 1432 of 2003 involving similar questions of law and fact were taken up for hearing together and are being disposed of by this common judgment. However, the factual matrix of the matter is being noticed from Criminal Appeal No. 821 of 2004.

2. The Appellant is the wife of the detenu Vinod Kumar Garg who was detained by an order dated 20th October, 2003 passed by the Joint Secretary to the Government of India, Ministry of Revenue, New Delhi purported to be under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short the COFEPOSA Act ).

3. The grounds of detention indicate that the said order of detention was passed primarily on two allegations, viz.:

(a) the export consignment was misdeclared stating it to be alloy steel forging (machined) although actually the same was a metal scrap; and

(b) the goods were over invoiced as the value thereof was declared by the exporter to be Rs. 170-175 per kg instead and place of its actual value being only Rs. 4-5 per kg.

4. The allegations in support of the said grounds of detention were primarily based on the self-inculpatory statement of the detenu recorded by the Directorate of Revenue Intelligence purported to be in terms of Section 108 of the Customs Act. The said statements, however, were retracted by the detenu before the learned ACMM on or about 26th August, 2003.

5. The learned ACMM in his order dated 20th August, 2003 also recorded the statement that the detenu had made his statement involuntarily and had also been tortured. It was directed:

"At the request of accused it is directed to the I.O. Sh. Mukesh Gaur to allow the accused person to talk to their family members on STD/Telephone. Accused have also stated that at this moment their advocates are not present hence they may be remanded to J.C. till morning so that they can take the services of their advocates.

"I have gone through the file, produced before me by the I.O. S.S.P. made a request for 14 days J.C. of both the accused. However after considering all the statements made before me by the accused persons, they have been remanded till 2 p.m. on 26/8/2003 in J.C. with the directions to produce both the accused in the court by 2 p.m. to 4 p.m."

6. Along with the said Vinod Kumar Garg, orders of detention were also passed against his brother Narsi Dass Garg and their manager, Mudit Kumar Tiwari. However, when the matter was placed before the Central Advisory Board in terms of Sub-section (3) of Section 8 of the COFEPOSA Act, the Board although approved the order of detention of Vinod Kumar Garg and Narsi Dass Garg, the detention of Mudit Kumar Tiwari was not approved.

7. Questioning the said order of detention, the Appellant herein as also the aforementioned Narsi Dass Garg filed two writ petitions before the Punjab and Haryana High Court. Both the petitions were dismissed by reason of the impugned order. Hence this appeal.

8. Mr. Gopal Subramaniam, learned senior counsel appearing on behalf of the Appellant had raised a number of contentions in support of this appeal. The learned counsel would firstly submit that from the averments made in the show-cause notice dated 20th August, 2004 issued by the Authorities upon the detenue it would be evident that the goods of the exporter were made up of alloy steel and in that view of the matter the order of detention cannot be sustained only on the basis of his purported self-inculpatory statement recorded by the official of Directorate of Revenue Intelligence under Section 108 of the Customs Act.

9. The learned counsel would further submit that keeping in view of the fact that the self-inculpatory statement has been retracted, the same could not have been the basis for issuing the order of detention.

10. Mr. Sub