The grounds of detention must be communicated to the detenu as soon as practicable after the detention, but not later than five days, and in exceptional circumstances, not later than fifteen days from the date of detention.

Headnote:
COFEPOSA ACT - DETENTION ORDER - SECTION 3(III) - VALIDITY OF DETENTION ORDER - INTERPRETATION OF ARTICLE 22(5) OF THE CONSTITUTION - SINGLE SOLITARY ACT AS GROUND FOR DETENTION - APPLICATION OF MIND BY DETAINING AUTHORITY - PROSECUTION AND DETENTION FOR SAME GROUND.
Fact of the Case:

The petitioner, a co-owner of a truck, was arrested for smuggling foreign goods worth Rs. 5,70,000. He was detained under the COFEPOSA Act, and the detention order was confirmed by the State Government. The petitioner challenged the legality of the detention order, arguing that it was passed after the expiry of the 15-day period specified in Section 3(iii) of the COFEPOSA Act and that there was no application of mind by the detaining authority.
Finding of the Court:

The court held that the detention order was valid and dismissed the petition. It interpreted Article 22(5) of the Constitution to mean that the grounds of detention must be communicated to the detenu as soon as practicable after the detention, but not later than five days, and in exceptional circumstances, not later than fifteen days from the date of detention. The court also held that a single solitary act can be sufficient to warrant an inference that the petitioner will repeat his activities in the future, and that the detaining authority had applied its mind to the facts and circumstances of the case before passing the detention order.
Issues: 1. Whether the detention order was passed after the expiry of the 15-day period specified in Section 3(iii) of the COFEPOSA Act? 2. Whether there was no application of mind by the detaining authority? 3. Whether a single solitary act can be sufficient to warrant an inference that the petitioner will repeat his activities in the future?
Ratio Decidendi: 1. The court interpreted Article 22(5) of the Constitution to mean that the grounds of detention must be communicated to the detenu as soon as practicable after the detention, but not later than five days, and in exceptional circumstances, not later than fifteen days from the date of detention. The court held that the detention order was not passed after the expiry of the 15-day period, as it was served on the petitioner on the same day it was passed. 2. The court held that the detaining authority had applied its mind to the facts and circumstances of the case before passing the detention order. The court noted that the petitioner was a co-owner of the truck in which the smuggled goods were found, that he was present in the truck when it was intercepted, and that he had admitted to the recovery of the foreign goods. 3. The court held that a single solitary act can be sufficient to warrant an inference that the petitioner will repeat his activities in the future. The court noted that the petitioner was involved in a serious offence, that he had tried to conceal the smuggled goods, and that he was likely to be released on bail.
Final Decision: The court upheld the detention order and dismissed the petition.

Judgment

S.C.Mookherji, J.

1. The petitioner Om Prakash has questioned the legality and of the order of detention made on 21st August, 1989 by Home (Special) of the State Government under Sec. 3 (i)(ii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short COFEPOSA Act), the order of confirmation dated 19.12.1989, communicated to the petitioner on 15.12.1989 whereby and whereunder, he has been ordered to be detained from 19.9.1989 to 18.9.1990 and accordingly, the petitioner seeks a writ of hebeas corpus.

2. It is stated, inter alia, that the petitioner, a co-owner of a truck, gone to Siliguri, left the truck in the custody of the driver Sukhbir Singh and had gone to Mering for sight seeing. The driver was directed to book another cargo for return journey, who accordingly contacted Transport agent for another cargo and truck was loaded with the bundles of empty gunny bags for Bombay. On his return from sight seeing he found his truck loaded and the consignment papers were received by the driver. The petitioner had at that stage no knowledge about the mischief having been done by the loading agent. On way, the truck was intercepted on 7.1.1989 and checked by the Custom officials of Khagaria when only he could know that in the guise of bundles of gunny bags, contraband materials of polyster texterise yarn worth Rs, 5,70,000 were loaded in the truck. The petitioner was accordingly arrested and taken to custom office, Khagaria where he was made to sign on several blank papers and thereafter, forwarded to judicial custody on 9.2.1989 and he was remanded to Central Jail, Muzaffarpur by the order of the Chief Judicial Magistrate, Muzaffarpur.

3. Subsequently, a criminal proceculion was started against him in the special court (Economic Offence) Muzaffarpur in Custom case No. 13 of 1989 and his prayer for bail was rejected by the Special Court, whereupon he tiled another bail application in the court of Sessions Judge, Muzaffarpur which also received the same fate. The petitioner against that order, moved this Court in Cr. Misc. No. 6877 of 1989 and the same was dismissed on 17.7.1989 with some observations.

4. The petitioner further stated that the sanction for his prosecution under Sec. 135 (i)(b) of the Customs Act was accorded, by the Collector, Customs on 22.5.1989 and the trial (No. 2027 of 1989) proceeded, wherein two witnesses were examined. On 19.9.1989 he was served with detention order dated 21.8.1989 passed by the State Government in the department of Home (Special), both in English and Hindi along with the grounds of detention and some other documents namely, the seizure report dated 7.2.1989, the brief facts of the substantive case and the alleged confessioal statement of the petitioner as contained in annexure-1. On 3.11.1989 he was supplied with an order dated 2.11.1989 passed by the State Government whereby he was in formed that his case had been referred to Advisory Board under Sec. 8(c) of the COFEPOSA Act. On 15.12.1989 he was served with another order passed by the State Government in exercise of the power under Sec. 8(f) and 10 of the COFEPOSA Act, whereunder he was informed that he was detained under Sec. 3(i) of the COFEPOSA Act for one year till 18.9.90. By this order although he was detained by an order dated 21.8.89, the detention was counted with effect from 19.9.89 till 18.9.90 (Annexure-3).

5. The petitioner filed another bail application in Custom Case No. 13 of 1989 in this Court being Cr. Misc. No. 11692 of 1989 and he was granted bail on 13.11.89 (Annexure-4). On these grounds, the detention order has been challenged as being against the provisions of law and in violation of his fundamental rights.

6. In the counter-affidavit filed on behalf of Collector, Custom Indo Nepal Border, Patna it is stated inter alia, that the truck of which the petitioner was the co-owner was intercepted by the Custom Department and a large number of foreign goods while in the pr

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Judicial Analysis

1990 Supreme(Pat) 163

PATNA HIGH COURTS.C.Mookherji, J.Om PrakashVersusState Of BiharCriminal Writ Jurisdiction No. 30 of 1990 ;Decided On : APRIL 18, 1990

The grounds of detention must be communicated to the detenu as soon as practicable after the detention, but not later than five days, and in exceptional circumstances, not later than fifteen days from the date of detention.

Judicial Analysis

PATNA HIGH COURT
S.C.Mookherji, J.
Om Prakash
Versus
State Of Bihar
Criminal Writ Jurisdiction No. 30 of 1990 ;
Decided On : APRIL 18, 1990