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High Court Of Calcutta
GITESH RANJAN BHATTACHARJEE, BASUDEVA PANIGRAHI
TAPAS CHOWDHURY - Appellant
Versus
UNION OF INDIA - Respondent
C. O. /C. R. Of 1995
Decided On : 09/05/1995
COFEPOSA ACT - ORDER OF DETENTION - VALIDITY - SUPPLY OF ILLEGIBLE COPIES OF DOCUMENTS AND NON-SUPPLY OF CERTAIN DOCUMENTS - EFFECT - ARTICLE 22(5) OF THE CONSTITUTION OF INDIA - INTERPRETATION.
Fact of the Case:
The petitioner, who is the son-in-law of the detenu, challenged the order of detention passed by the Joint Secretary to Govt. of India, Ministry of Finance, Department of Revenue, on 5th January, 1995, under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act). The detenu was arrested on 11th January, 1995. The order of detention was passed with a view to preventing the detenu from abetting the smuggling of goods in future.
Finding of the Court:
The Court held that the detention order was bad due to non-supply of legible copies of certain documents and non-supply of the road challan referred to in the grounds of detention. The Court observed that the supply of illegible documents amounts to non-supply of the concerned documents and that the detenu was entitled to be set at liberty as he was denied the opportunity of making a representation due to non-supply of legible copies of documents.
Issues: 1. Whether the order of detention was bad due to non-supply of legible copies of certain documents and non-supply of the road challan referred to in the grounds of detention? 2. Whether the detenu was entitled to be set at liberty as he was denied the opportunity of making a representation due to non-supply of legible copies of documents?
Ratio Decidendi: 1. The Court held that the detention order was bad due to non-supply of legible copies of certain documents and non-supply of the road challan referred to in the grounds of detention. The Court observed that the supply of illegible documents amounts to non-supply of the concerned documents and that the detenu was entitled to be set at liberty as he was denied the opportunity of making a representation due to non-supply of legible copies of documents. 2. The Court held that the detenu was entitled to be set at liberty as he was denied the opportunity of making a representation due to non-supply of legible copies of documents.
Final Decision: The Court allowed the writ petition and directed the detenu to be released forthwith unless his detention is required in connection with any other proceedings.
( 1 ) THIS is an application under Article 226 of the Constitution of India challenging the order of detention of one Shri Mukti Prasad Dutta passed in exercise of the power conferred by Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act, for short ). The petitioner who is the son-in-law of the said Shri Mukti Prasad Dutta has filed this writ petition on behalf of the detenu. The order of detention was passed by the Joint Secretary to Govt. of India, Ministry of Finance, Department of Revenue on 5th January, 1995. Pursuant to that order the detenu Shri Mukti Prasad Dutta was arrested on 11th January, 1995. The detention, as the order purportingly announces, was considered necessary with a view to preventing the detenu from abetting the smuggling of goods in future. The detenue is a partner of M/s. N. Dutta Agency holding customs house clearing agency license and he worked as the clearing agent of the importers, M/s. R. N. J. Exports Pvt. Ltd. and M/s. R. S. I. Eng. (P) Ltd.
( 2 ) THE case of the respondents, Union of India and others, in short, is described below. The importers M/s. R. N. J. Exports Pvt. Ltd. , being a 'buty-Exemption Entitlement Certificate' Holder, had been violating the conditions of VABAL (Value Based' Advance Licence) Scheme. R. N. J. Exports obtained Value Based Advance Licence No. P/k/3389877/c dated 8-7-1993 and DEEC Book Serial No. 087496/cal. dated 8-7-1993 for the import of Polystyrene/polyetnylene/polyprepylene Moulding powder, ball pen tips and writing ink valued at Rs. 45,31,215. 00 free of customs duty with the condition that the importers shall export 15 lakhs pcs. ball point pens and parts thereof including refills for FOB value of U. S. 2,32,000 within twelve months from the date of the issue of the license and that the goods imported against the Advance License shall be utilised in accordance with the provisions of the customs notification No. 203/92 dated 19-5-1992. The said licence was issued with Actual, Users' Conditions upon declaration by the importers that M/s. Line Writing Aids Pvt. Ltd. , M/s. Chemplast India Pvt. Ltd. and M/s. Bandana Pen Industries were supporting manufacturers of the resultant export products of the importers which names were endorsed on the DEEC Books of the importers. One of the conditions of the scheme is that the imported exempt material shall not be disposed of in any manner before the export obligation is fulfilled in full, the export proceeds realised and the bank guarantee/l. U. T. is redeemed and that the merchant exporter shall
export the products manufactured by the supporting manufacturers as endorsed in the DEEC Book, towards fulfillment of the prescribed obligation. Enquiries revealed that 255 Mts. Polysterene raw materials collectively valued at Rs. 45,97,425 (CIF) were imported by the importers under five bills of entry Nos. IF-371 dated 30-12-1993, IF-232 dated 24-1-1994, IF-266 and 267 dated 27-1-1994 and IF-268 dated 7-2-1994 free of customs duty claiming benefit of customs notification No. 203/92 dated 19-5-1992 against the said advance licence and the DEEC book. The said goods were cleared from the dock on 1-1-1994, 29-1-1994, 8-2-1994 and two consignments on 14-2-1994 and the goods were handed over to one Shri Narendra Surana who, in turn, admitted to have received 75 Mts. of goods relating to the aforesaid bills of entry on different dates and times from the dock and sold them to different parties directly from the docks at the request of the importers and the payment for such sale was made directly to the importers by the respective buyers. The importers admitted to have received only 153 Mts. of the materials imported by them and denied having knowledge about the balance quantity of 102 Mts. The importers categorically stated that they did not have any stock of the raw materials imported by them and they produced sale bills of 85 Mts. and f
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