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2006 Supreme(Cal) 27
High Court Of Calcutta
DEBIPRASAD SENGUPTA, SADHAN KUMAR GUPTA
BINOD KUMAR GARODIA - Appellant
Versus
SAROJ GARODIA - Respondent
W. P. 16771 (W) Of 2005
Decided On : 01/18/2006
ARJUN ROY MUKHERJEE, CHANDRIMA BHATTACHARJI, DIPANKAR DUTTA, MILON MUKHERJEE, Piyush Kumar, Pradip Kumar Ghosh, S.K.MEHTA
The detaining authority under the COFEPOSA Act must strictly adhere to the safeguards provided under Article 22(5) of the Constitution of India, including considering all relevant materials, providing relied-upon documents, ensuring the legibility of documents, supplying documents along with grounds of detention, considering relevant Court orders, avoiding unexplained delays, and considering retractions filed by persons whose statements were relied upon. Failure to comply with these safeguards may result in the detention order being quashed.
Headnote:
COFEPOSA ACT - Detention order quashed due to non-consideration of relevant materials, non-supply of relied-upon documents, illegible documents, non-supply of documents along with grounds though ready, non-consideration of various Court orders covering the subject matter of grounds of detention, delay in passing the detention order, and non-consideration of retractions filed by the persons whose statements were relied upon.
Fact of the Case:
The petitioner challenged the validity of her husband's detention under Section 3(1) of the COFEPOSA Act, 1974, alleging various illegalities in the detention order.
Finding of the Court:
The Court found that the detaining authority failed to consider relevant materials, did not supply relied-upon documents, provided illegible documents, did not supply documents along with grounds though they were ready, did not consider various Court orders covering the subject matter of grounds of detention, caused unexplained delay in passing the detention order, and failed to consider retractions filed by persons whose statements were relied upon.
Issues: 1. Whether the detaining authority considered relevant materials before passing the detention order? 2. Whether the detenu was provided with relied-upon documents? 3. Whether the provided documents were legible? 4. Whether the documents were supplied along with the grounds of detention? 5. Whether the detaining authority considered various Court orders covering the subject matter of grounds of detention? 6. Whether there was an unexplained delay in passing the detention order? 7. Whether the detaining authority considered retractions filed by persons whose statements were relied upon?
Ratio Decidendi: 1. The detaining authority must consider all relevant materials before passing a detention order, and failure to do so vitiates the order. 2. The detenu must be provided with copies of all documents relied upon in the grounds of detention, and failure to do so renders the order illegal. 3. Illegible documents provided to the detenu prevent them from making an effective representation, rendering the detention order bad in law. 4. Documents that are ready should be supplied along with the grounds of detention, and any delay in doing so violates the constitutional safeguards guaranteed to the detenu. 5. The detaining authority must consider various Court orders covering the subject matter of grounds of detention, and failure to do so may vitiate the detention order. 6. Unexplained delay in passing a detention order casts doubt on the genuineness of the detaining authority's subjective satisfaction and may lead to the order being quashed. 7. The detaining authority must consider retractions filed by persons whose statements were relied upon in passing the detention order, and failure to do so may vitiate the order.
Final Decision: The Court allowed the writ petition and quashed the detention order, directing the respondents to forthwith set the detenu at liberty unless required in custody in connection with any other case.
( 1 ) IN this petition for a writ of Habeas Corpus the petitioner saroj Garodia calls in question the validity of her husband viz. Binod Kumar garodia's detention under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The detenu Binod Kumar gorodia was taken into preventive custody in pursuance of an order dated 14. 07. 2005 passed under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 issued by one Sri R. K. Gupta, joint Secretary to the Government of India under the following circumstances :-"intelligence was gathered that a 100% EOU namely M/s. Paramount trade Link Pvt. Ltd. , Varanasi was indulging in mis-declaration regarding nature, value etc. of import and export of goods and clandestine removal of those goods from the said 100% EOU in DTA to avail inadmissible duty exemption benefit. It was reported that Shri Binod Kumar Garodia, the detenu, was involved in the fraud with the help of his associates Shri Vijender Garg, Dinesh Kumar agarwal, Santosh Kumar Jha, his son Himanshu Garodia and others. Pursuant to the above intelligence, godowns, residence and office belonging to the detenu, and Shri Vijender Garg were searched resulting in the recovery and seizure of huge number of photocopier machines which were seized under panchnama on various dates and statements of several persons were recorded. "
( 2 ) SHRI Binod Kumar Garodia was summoned on 18. 02. 2005 under section 108 of the Customs Act, 1962 and he made a voluntary statement wherein he admitted the clandestine and illegal dealing and illegal removal into dta and misdeclaration of export, in violation of the provisions of the Customs act and the relevant "exemption notification. Similarly, Vijender Kumar Garg and Dinesh Kumar Agarwal were also summoned on 18. 02. 2005 under Section 108 of the Customs Act and they also gave voluntary statements wherein they admitted their involvement in the clandestine and fraudulent act of the detenu. The matter was investigated in detail by the revenue authority and during the course of investigation large number of statements of different persons were recorded and properties were seized from different godowns.
( 3 ) THE result of the investigation showed that the detenu conspired to evade huge amount of customs duty through a 100% EOU in the name of M/s. Paramount Link Pvt. Ltd. at Varanasi by showing certain persons as its directors to avoid being traced as its real owner, imported fully assembled old and used photocopiers by mis-declaring those machines as machinery, spares and components, copiers in Semi Knocked Down Condition (old and used), got the saleable machines segregated by the staff of the detenu in the unit and illegally diverted those machines without carrying out any process of manufacturing/ assembling under fake parallel invoices issued in the name of dummy/non-existent firms to DTA. In connection with all those activities, the detenu was arrested for the commission of the offences under the Customs Act, 1962 and was released on bail. After taking into consideration the above mentioned facts and materials, the authority was satisfied that the activities of the detenu amounted to smuggling as defined under Section 2 (39) of the Customs Act, 1962 and as adopted in the COFEPOSA Act, 1974 and as such, the authority. came to the conclusion that the detenu was involved in prejudicial activities as discussed above in a well planned manner and the authority was satisfied that the detenu was capable of indulging in such prejudicial activities in future and as such, he was of the opinion that it was necessary in order to prevent the detenu from indulging in such prejudicial activities in future, to detain him under the COFEPOSA Act, 1974 with a view to prevent him from smuggling goods in future. The detaining authority took into consideration the various representations and other materials and thereafter pas
