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High Court Of Calcutta
NURE ALAM CHOWDHURY, ARUN KUMAR
RUMA MOITRA - Appellant
Versus
UNION OF INDIA - Respondent
W. P. 11470 (W) Of 2004
Decided On : 11/30/2004
COFEPOSA ACT - DETENTION - GROUNDS - SUPPLY OF DOCUMENTS - UNCOMMUNICATED MATERIAL - ARTICLE 22(5) OF THE CONSTITUTION - VALIDITY OF DETENTION ORDER. 1. Taking into consideration the previous order of detention dated 21.01.2002 which was set aside by the Advisory Board. 2. Non-supply of documents.
Fact of the Case:
The petitioner, Manas Kumar Moitra, was detained on 24.06.2004 by virtue of an order of detention passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act). The detention order was passed on the grounds that the detenu was involved in fraudulent export of leather gloves and leather wallets, and that he had claimed drawback/DEPB amounting to about Rs. 44.24.400/- by fraudulently misdeclaring the export cargo.
Finding of the Court:
The Court held that the impugned detention order was violative of Article 22(5) of the Constitution and was thus vitiated on the following grounds: 1. The Detaining Authority had relied upon the previous order of detention dated 21.01.2002, which was set aside by the Advisory Board, in passing the impugned order of detention. This was held to be a violation of the principle that once an order of detention is revoked or expires, a subsequent order can only be passed if there are fresh facts against the detenu. 2. The Detaining Authority had failed to supply all the documents and materials relied upon in the grounds of detention to the detenu, despite his repeated requests. This was held to be a violation of the detenu's right to make an effective representation against his detention, as guaranteed under Article 22(5) of the Constitution. 3. The Detaining Authority had relied upon uncommunicated material in the grounds of detention, such as the inference that the detenu was availing of 'export benefits like DEPB and Drawback' from two other companies that were allegedly controlled by him. This was held to be a violation of the detenu's right to be informed of all the grounds of his detention, as guaranteed under Article 22(5) of the Constitution.
Issues: 1. Whether the Detaining Authority could rely upon the previous order of detention dated 21.01.2002, which was set aside by the Advisory Board, in passing the impugned order of detention? 2. Whether the Detaining Authority was obliged to supply all the documents and materials relied upon in the grounds of detention to the detenu? 3. Whether the Detaining Authority could rely upon uncommunicated material in the grounds of detention?
Ratio Decidendi: 1. Once an order of detention is revoked or expires, a subsequent order can only be passed if there are fresh facts against the detenu. 2. The Detaining Authority is obliged to supply all the documents and materials relied upon in the grounds of detention to the detenu, within five days from the date of detention or, in exceptional circumstances, within 15 days from the date of detention. 3. The Detaining Authority cannot rely upon uncommunicated material in the grounds of detention.
Final Decision: The Court allowed the writ petition and set aside the impugned order of detention. The detenu was directed to be released forthwith.
( 1 ) IN this application under Article 226 of the constitution of India for Habeas Corpus, the petitioner has sought for release, on setting aside the order of detention, of her husband Sri Manas Kumar moitra, hereinafter referred to as the detenu, who has been detained on 24. 06. 2004 by virtue of an order of detention passed under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities act, 1974, hereinafter referred to as the COFEPOSA Act, on 21. 06. 2004. The said order of detention together with the grounds therefor is contained in annexure P-1 to the writ application.
( 2 ) THE background history leading to the above application is that two containers containing fraudulent export cargo of M/s. S. G. International Pvt. Ltd. , Kolkata, meant for loading on the vessel M. V. Thor Lone, were intercepted by the Officers of Dock Intelligence Unit (Prev.) on 15. 11. 2003 at netaji Subhas Dock Yard after issue of the dock challan. As no representative of the said exporter, of which the detenu is the director, was available, the seals of the containers were opened in presence of the authorized representative of the Customs House Agent M/s, S. N. M. Agency, two independent witnesses and CISF Personnel, and it was found that out of recovered 3109 cartons as against declared quantity of 2729 cartons (in 13 shipping bills), 2206 cartons contained waste rubber materials/ cuttings/ trash/broken bricks in wet condition and the balance 903 cartons contained the declared goods. The said 13 Shipping Bills of different dates were filed for export of 2729 cartons of goods declared as Leather Gloves and Leather wallet with a declared FOB value of Rs. 4,91. 60. 000/ -. The Bills of Export for duty-free goods revealed that the said M/s. S. G. International Pvt. Ltd. being a unit of Falta Economic Zone (FSEZ) had procured the purported export consignments from M/s. Peoples Tannery of 72, Matheswar Tolla Road, kolkata-700 046 and M/s. Sree Exports Pvt. Ltd. of 17a Sura Third Lane, kolkata-700 010, of which the detenu is a senior partner and Director of the firms respectively, and thus M/s. Peoples Tannery and M/s. Sree Exports Pvt. Ltd. would have claimed fraudulently Drawback/depb amounting to about rs. 44. 24. 400/-, being. . . of the total declared FOB value of Rs. 4,91,60,000/-since the said authorized representative of the Customs House Agent could not produce any satisfactory explanation forthe above misdeclared export cargo, the containers along with the recovered goods, were seized on 19. 11. 2003 under section 11 Oof the Customs Act, 1962 as those were illegally and fraudulently attempted to be exported outside India to fulfil their export obligation, in contravention of the provisions of the Customs Act.
( 3 ) THE detenu was arrested and produced before the Court of learned chief Metropolitan Magistrate, Kolkataon 11. 12. 2003 when he was ordered to be kept in judicial custody till 22. 12. 2003, which was subsequently extended. On 27. 01. 2004 he was granted bail by the learned phief Metropolitan magistrate, Kolkata on certain conditions. With a view to preventing him from smuggling goods in future, on 21. 06. 2004 the Detaining Authority issued an order of detention under Section 3 (1) of the COFEPOSA Act which was executed by the local police authorities and accordingly, he was detained and kept in custody in the Presidency Correctional Home at Alipore on and from 24. 06. 2004.
( 4 ) THE impugned order of detention has been. . . . . by the petitioner broadly on five grounds out of which two are : i. Taking into consideration the previous order of detention dated 21. 01. 2002 which was set aside by the Advisory Board. II. Non-supply of documents.
( 5 ) BEFORE we open the discussion, and indeed as paving the way for it, it is worthwhile to mention that in a proceeding of this nature the Court will not enquire into the sufficiency of the materials justifying the making of the ord
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