Point of Law: A detenu has a fundamental right under Article 22(5) that grounds on which a detention order has been made against him, be communicated to him as soon as may be and that he be afforded an opportunity of making a representation against detention order at earliest.

JUDGMENT :

ANUP JAIRAM BHAMBHANI, J.

1. The petitioner Jasvinder Kaur has filed the present writ petition under Article 226 of the Constitution of India read with section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.) seeking a direction in the nature of habeas corpus for the production of her son Harmeet Singh, who the petitioner alleges, has been illegally detained by the respondents. After amendment of the array of party-respondents, the respondents in the proceedings are the Union of India, through its Secretary, Ministry of Finance, Department of Revenue (Central Economic Intelligence Bureau); Joint Secretary (COFEPOSA) and The Commissioner of Customs, Terminal-3, IGI Airport, New Delhi, which parties are hereinafter collectively referred to as the Ministry or the respondents.

2. The petitioner further seeks quashing of detention order bearing No. PD-12002/05/2020-COFEPOSA dated 05.06.2020 issued under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) by the Joint Secretary COFEPOSA (the “impugned detention order”) under which the petitioner’s son is in preventive detention with The Superintendent, Tihar Jail, New Delhi, which detention order also stands confirmed by the Department of Revenue, Ministry of Finance vide order dated 11.08.2021.

3. As per the record, the Ministry’s case against the petitioner’s son is this:

(i) A specific intelligence input is stated to have been received on 01/02.02.2019 by the Assistant Commissioner, Green Channel (Shift-D) at the Indira Gandhi International Airport (IGI Airport) about smuggling of drones, goods, cigarettes and certain other items in commercial quantity by six passengers on different flights. Pursuant to this intelligence input, customs officers along with officers of the Directorate of Revenue Intelligence (DRI) approached Exit Gate No. 5 of the Arrival Hall, IGI Airport to intercept eight passengers, including the petitioner herself and upon conducting search of their baggage, certain objectionable goods were found in the baggage of two persons, Gagan Jot Singh and Gurpreet Singh.

(ii) Subsequently, on information allegedly given by Gagan Jot Singh, on the intervening night of 01.02.2019 and 02.02.2019, at around 1:30 a.m. the petitioner’s son, Harmeet Singh who arrived at IGI Airport from Dubai via Kuwait Airways-Flight No. KU-381 was also apprehended for carrying contraband items and goods, along with three other persons, by name Sumit Verma, Sourabh Chopra and Amarjeet Singh.

(iii) Notice under section 102 of the Customs Act, 1962 (Customs Act) was served upon Harmeet Singh on 02.02.2019; officers of the Department of Revenue, Ministry of Finance recorded his statement under section 108 of the Customs Act, which is stated to have been self-incriminating in nature. Importantly, it is the case of the respondents that the statement of Harmeet Singh was typed in the English language and was stated to have been explained to him in the vernacular by an interpreter.

(iv) As per the impugned detention order, upon search of Harmeet Singh’s bags the following items were found:

(i) 238 dandas of Benson and Hedges Cigarettes.

(ii) Boarding Pass dated 01.02.2019 for Flight No. KU-381 (Kuwait to Delhi) with Seat No. 2H.

(iii) Indian Passport No. Z5317414 issued on 16.01.2019.

(iv) One Vivo Y53 mobile with Vodafone Sim No. 8860253525.

(v) UAE Dirham 300/-

(vi) 02 bottles of Chivas Regal 12-YO whiskey.

(vii) Personal effects, old and used.

(v) The Ministry says that several other articles and goods, including drones and cameras were recovered from the other persons apprehended along with Harmeet Singh and that the total value of the goods seized and confiscated under sections 110 and 111 of the Customs Act is stated to be about Rs. 1,09,74,500/- (Rupees One Crore Nine Lacs Seventy-Four Thousand Five Hundred Only).

(vi) Harmeet Singh was arrested on 03.02.2019, whereupon he was produced before the learned Metropolitan Magistrate,