1991 Supreme(Raj) 993
RAJASTHAN HIGH COURT AT JAIPUR BENCH
M.B.Sharma, V.K.Singhal, JJ.
Suleman - Appellant
Versus
State of Rajasthan and Others - Respondent
D.B. Habeas Corpus Petition No. 6596 of 1991.
Decided On : 20-12-1991
Detention orders under the COFEPOSA Act must be executed promptly, and the detenu must be given an opportunity to produce defence evidence before the Advisory Board and be provided with all material considered for the detention order to make an effective representation.
Headnote:
COFEPOSA ACT - SECTION 3, 9 - [COFEPOSA ACT, 1974] - DETENTION ORDER UNDER SECTION 3 OF COFEPOSA ACT - DELAY IN EXECUTION - DETENU NOT ALLOWED TO PRODUCE DEFENCE EVIDENCE IN REBUTTAL BEFORE ADVISORY BOARD - ORDER UNDER SECTION 9 MADE WITHOUT SUPPLYING ADDITIONAL MATERIAL TO DETENU - DETENTION HELD ILLEGAL AND QUASHED.
Fact of the Case:
The petitioner challenged the detention order of his brother, Gulam Hussain, under Section 3 of the COFEPOSA Act, 1974, on the grounds of delay in execution, denial of opportunity to produce defence evidence before the Advisory Board, and non-supply of additional material considered for the order under Section 9 of the Act.
Finding of the Court:
1. The delay of over 2 months in executing the detention order, without any explanation, raised doubts about the genuineness of the detaining authority's satisfaction regarding the necessity of detention. 2. The detenu was not allowed to examine his witnesses in rebuttal before the Advisory Board, violating his right to lead evidence under Article 22(5) of the Constitution and Section 8(b) of the COFEPOSA Act. 3. The order under Section 9 of the Act was made considering additional material that was not supplied to the detenu, hindering his ability to make an effective representation.
Issues: 1. Whether the delay in executing the detention order rendered it illegal. 2. Whether the denial of opportunity to produce defence evidence before the Advisory Board violated the detenu's rights. 3. Whether the order under Section 9 of the Act was valid without supplying the additional material considered to the detenu.
Ratio Decidendi: 1. Unexplained delay in executing a detention order casts doubt on the detaining authority's genuine satisfaction regarding the necessity of detention. (T.A. Abdul Rahman v. State of Kerala and others, AIR 1990 SC 325; Shafiq Ahmed v. District Magistrate, Meerut and others, AIR 1990 SC 220) 2. The detenu has the right to lead evidence in rebuttal before the Advisory Board, and denying this right violates Article 22(5) of the Constitution and Section 8(b) of the COFEPOSA Act. (Harbanslal v. M.I. Wadhawan and others, AIR 1987 SC 217) 3. To enable the detenu to make an effective representation, all material considered for the detention order must be supplied to him.
Final Decision: The detention order under Section 3 of the COFEPOSA Act and the order under Section 9 of the Act were quashed and set aside. The detenu, Gulam Hussain, was ordered to be released forthwith unless required in any other case.
JUDGMENT
1. 1. An order under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, COFEPOSA Act) ordering the detention of the detenu Gulam Hussain, of whom the petitioner claims to be the brother, was made on April 30, 1991 (Annexure-2). The said order was made with a view to preventing Gulam Hussain, the detenu, from abetting the smuggling of goods, or harbouring persons engaged in smuggling goods.
2. The circumstances on the basis of which the aforesaid order was made may now be enumerated here and they are as under.
3. The customs authorities while acting on general intelligence that contraband gold would be smuggled across Indo-Pak border and would be transported in light vehicle towards Gujarat, proceeded to Municipal Octroi checkpost No. 2 and conducted a Naka on N.H. 15 on February 2, 1991. At about 12.00 hours, a white Maruti Gypsy bearing No. BLF-3682 was intercepted which was coming from the direction of Barmer and was going towards Gujarat. There were two occupants in the Gypsy and on enquiry they revealed their names as Machimanda N. Monappa and Suresh Shetty. Whereas the former was driving the Gypsy, the latter was sitting in it. On a search being taken one canvas bag was found concealed inside a cavity in the side panal in the body of the Gypsy behind the driver seat. It was found too heavy. At the request of one of the occupants of the Gypsy the vehicle was brought to the Customs Range Officer, Sanchore alongwith the witnesses, where the canvas bag was examined and 10 foreign marked gold biscuits were recovered and 480 F.M. Gold Biscuits were recovered from the vacities of the Gypsy made in the wooden parts of the two back-rest of the rear seats. Thus, in all 490 F.M. Gold biscuits were recovered during the search. They were of 24 carat purity and each of them was weighing 10 totals. The occupants of the Gypsy failed to produce any evidence documentary or otherwise to prove licit import of those gold biscuits and their acquisition/ possession. Therefore, on a reasonable belief that 490 F.M. Gold Biscuits had been smuggled into India and are liable to confiscation under the provisions of Customs Act, 1960 (for short, the Customs Act), they were seized. They were of the value of Rs. 2,05,80,000 / -. The statements of the above occupants of the Gypsy were recorded under section 108 of the Customs Act and it was stated by them that the gold biscuits belonged to Shri Prithviraj M. Shetty, resident of 7, Bang low And heri, Varseva Bombay who had directed him to take delivery of contraband gold from Gulam Hussain, the detenu in this case. As per the statement of Manappa recorded under Section 108 of the Customs Act, on January 31, 1991, in the after-noon he and Suresh Shetty reached village Bhanwar and stayed in Utiars (small cottage) provided by the detenu and on February 2,1991 at about 0 600 hours detenu brought the consignment of 490 foreign marka gold biscuits which were put in the canvas bag and the same was concealed in the Gypsy. It was given out that he was to get Rs. 25,000 / - for making the delivery of the said contraband gold biscuits from detenu to Prithviraj, M. Shetty in Bombay and out of it he had given Rs. 5,000 /- to Suresh Shetty Naik. He also gave out that from telephonic conversation of Prithviraj M. Shetty with somebody in Karachi he knew that the consignment of 490 F.M. gold biscuits was smuggled into India from Karachi.
4. On February 3, 1990, the officers of Customs Barmer took a search of residential premises of detenu in village Bhanwar, but the detenu was not present in his village at that time and nothing incriminating was found or recovered during the search conducted by the authorities. It was on February 10, 1991 that detenu was arrested by the Customs authorities at Palanpur and his statement was recorded under Section 108 of the Customs Act wherein he accepted that 490 F.M. gold biscuits were delivered by him to M.N. Manappa and
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