IMPORTANT POINT
Failure of Custom Authorities in placing the material that the seized VCR's were in fact smuggled into the country by the detenu vitiated the order of detention passed u/s. 3(1) of COFEPOSA Act, 1947.

JUDGMENT

Couto, J. - The petitioner is the wife of one Devchandbhai Kalanbhai Tandel who is detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 194 7 (hereinafter called the COFEPOSA). She challenges, in this writ for Habeas Corpus, the Detention Order dated 23rd February, 1984 issued by the second respondent under section 3(1) of the - COFEPOSA purportedly, to prevent him from engaging in concealing smuggled goods and from - engaging in keeping smuggled goods, as well as the declaration dated 15th February, 1985 made by the fourth respondent under section 9(1) of the COFEPOSA and its constitutional validity. The said Detention Order as well as the grounds for the detention were issued on 23rd February, 1984 and actually served on the detenu on 2nd February, 1985.

2. As disclosed in the grounds of detention, the basis for issuing the said detention order is that on 14-11-83, on receipt of information that some contraband goods like Video Cassette Recorders, watches, gold etc. have been concealed in an iron tank fitted in the compound of the detenu's residential premises, the Custom Officers went to the spot and detected one iron tank besides the cement water tank in the rear portion of the residential house of the detenu. The said iron tank was apparently connected with the cement tank by a pipe line and on dismentling the pipeline and on removing the iron tank, it was found a pit under which some steps had been built by using iron bars. Seven packages wrapped with paper and plastic were found in the said pit and on detailed examination, the said packages were found to contain 7 Video Cassette Recorders, made in Japan and worth Rs. 1,40,000/-. Investigation was carried out and finally, the Customs Authorities arrived at a finding that the said Video Cassette Recorders were belonging to the detenu.

3. The petitioner challenges the aforesaid Order of Detention and the declaration on several grounds, particularly on the ground, that the Detention Order as well as the grounds of detention were served on the detenu in a Gujarati translation which is, in material and substantial portions, in variance with the original English version thereof, a fact that has prevented the detenu from making a proper and effective representation against it. Secondly, the petitioner's case is that some relevant material which was required and necessary for the formation of the subjective satisfaction of the Detaining Authority was not placed before it. Particularly, sufficient evidence was not placed before the said Detaining Authority in order to establish that the Video Cassette Recorders were smuggled or illegally brought into the country. Finally the constitutional validity of section 9(1) of the COFEPOSA is being challenged. Mr. Karmali, the learned Counsel appearing for the petitioner, has however rested his case on the second ground only, because on one hand, he submitted that the question of the constitutional validity of section 9(1) of the COFEPOSA is pending before the Supreme Court and on the other, the first ground of challenge, namely, that the Gujarati version of the Detention Order and the grounds of detention is not accurate, is not necessary for the disposal of this petition. Therefore, the learned Counsel restricted himself to address the Court only on the ground that the Detention Order is vitiated inasmuch as sufficient material was not placed before the Detaining Authority, in order to satisfy it that the Video Cassette Recorders seized by the Customs Authorities had been smuggled into the country.

4. Dealing with this ground, the learned Counsel submitted that the Video Cassette Recorders were neither notified under section 123 nor under section 11-B of the Customs Act at the time, the seizure was made by the Customs Authorities. In fact, it was only on 20th July, 1984 that Video Cassette Recorders were brought within the purview of the provisions of section 123 and s