1985 Supreme(Mad) 88

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE RAMASWAMI & THE HONOURABLE MR. JUSTICE K M NATARAJAN
Thulasiammal and Others - Appellant
Versus
Joint Secretary To The Government of India - Respondent
Case No : W.P. 12014 etc. of 1944
Decided On : 15 February 1985

The constitution of the Advisory Board under Section 8 of the COFEPOSA Act is not violative of Article 22(4) of the Constitution, and Section 108 of the Customs Act, 1962, is not violative of Article 21 of the Constitution.

Headnote:

COFEPOSA ACT - Validity of detention orders - Constitution of Advisory Board - Section 8 of COFEPOSA Act - Constitutionality - Section 108 of Customs Act - Constitutionality - Procedure for identification of detenus - Legality - Furnishing of documents relied on - Obligation of detaining authorities - Scope - Grant of leave to appeal to Supreme Court.

Fact of the Case:

Batch of petitions challenging the validity of detention orders passed under Section 3(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). Petitioners contended that the constitution of the Advisory Board under Section 8(a) of the Act violated Article 22(4) of the Constitution, and that the continued detention of the detenue for more than two months from the date of detention was illegal.

Finding of the Court:

1. The constitution of the Advisory Board under Section 8 of the COFEPOSA Act is not violative of Article 22(4) of the Constitution. The provisions of Section 3 of the Constitution (Forty-fourth Amendment) Act, 1978, which sought to amend Article 22(4), have not been brought into force by the Central Government under Section 1(2) of the Amendment Act. The Court cannot assume that Section 3 has been brought into force and test the validity of Section 8 of the COFEPOSA Act in the light thereof. 2. Section 108 of the Customs Act, 1962, which empowers gazetted officers of customs to summon persons for interrogation and production of documents, is not violative of Article 21 of the Constitution. The section does not enable the customs authorities to detain or take any person into custody or compel them to make incriminating or involuntary statements. It only enables the customs officers to call upon a person to give evidence or produce any document. 3. The procedure adopted for identification of the detenus by the customs authorities was not arbitrary or against any provisions of law. The detenus were produced before the persons whose statements were recorded, and those persons were asked to state whether they knew the detenus. The customs officials were interested in knowing whether the persons giving statements knew the detenus. 4. The detaining authorities are not obligated to supply xerox copies of the documents relied on to the detenus. Article 22(5) of the Constitution only requires that such of those basic documents relied on by the detaining authority should be furnished to the detenus along with the ground of detention. If any further documents are required by the detenus, that also should be furnished in order to enable the detenu to submit his explanation against the order of detention.

Issues: 1. Whether the constitution of the Advisory Board under Section 8 of the COFEPOSA Act is violative of Article 22(4) of the Constitution? 2. Whether Section 108 of the Customs Act, 1962, is violative of Article 21 of the Constitution? 3. Whether the procedure adopted for identification of the detenus by the customs authorities was arbitrary or against any provisions of law? 4. Whether the detaining authorities are obligated to supply xerox copies of the documents relied on to the detenus?

Ratio Decidendi: 1. The constitution of the Advisory Board under Section 8 of the COFEPOSA Act is not violative of Article 22(4) of the Constitution. The provisions of Section 3 of the Constitution (Forty-fourth Amendment) Act, 1978, which sought to amend Article 22(4), have not been brought into force by the Central Government under Section 1(2) of the Amendment Act. The Court cannot assume that Section 3 has been brought into force and test the validity of Section 8 of the COFEPOSA Act in the light thereof. 2. Section 108 of the Customs Act, 1962, which empowers gazetted officers of customs to summon persons for interrogation and production of documents, is not violative of Article 21 of the Constitution. The section does not enable the customs authorities to detain or take any person into custody or compel them to make incriminating or involuntary statements. It only enables the customs officers to call upon a person to give evidence or produce any document. 3. The procedure adopted for identification of the detenus by the customs authorities was not arbitrary or against any provisions of law. The detenus were produced before the persons whose statements were recorded, and those persons were asked to state whether they knew the detenus. The customs officials were interested in knowing whether the persons giving statements knew the detenus. 4. The detaining authorities are not obligated to supply xerox copies of the documents relied on to the detenus. Article 22(5) of the Constitution only requires that such of those basic documents relied on by the detaining authority should be furnished to the detenus along with the ground of detention. If any further documents are required by the detenus, that also should be furnished in order to enable the detenu to submit his explanation against the order of detention.

Final Decision: The petitions challenging the validity of the detention orders were dismissed. The request for leave to appeal to the Supreme Court was also rejected.