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1999 Supreme(P&H) 790
PUNJAB & HARYANA HIGH COURT
R.L.Anand, J.
Arvind Shergill
Versus
Union Of India
Criminal Writ Petition No. 467 of 1999,
Decided On : AUGUST 4, 1999
A detention order under Section 3(1) of the COFEPOSA Act must be based on clear and specific grounds. Vague and irrelevant grounds cannot be the basis for a detention order.
Headnote:
COFEPOSA ACT - SECTION 3(1) - DETENTION ORDER - QUASHING - VALIDITY - GROUNDS - PREVENTIVE DETENTION - CONSERVATION OF FOREIGN EXCHANGE - SMUGGLING - JURISDICTION - MAINTAINABILITY OF WRIT PETITION - PRE-DETENTION STAGE - LEGALITY OF DETENTION ORDER - JUDICIAL REVIEW.
Fact of the Case:
Petitioner, wife of a senior captain of Air India, challenged the detention order passed against her husband under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA). The order was passed on the grounds that the husband was attempting to smuggle foreign currency out of the country. The petitioner contended that the detention order was illegal, unconstitutional, and based on vague and irrelevant grounds.
Finding of the Court:
The court held that the detention order was not sustainable in the eyes of law. It found that the order was passed in haste without application of mind and that the grounds of detention were vague and non-existent. The court also held that the impugned act attributed to the husband of the petitioner was not, in fact, with the object of conservation and augmentation of foreign exchange.
Issues: 1. Whether the detention order passed against the petitioner's husband under Section 3(1) of the COFEPOSA Act was valid. 2. Whether the grounds of detention were vague and irrelevant. 3. Whether the detention order was passed in haste without application of mind. 4. Whether the impugned act attributed to the husband of the petitioner was, in fact, with the object of conservation and augmentation of foreign exchange. 5. Whether the High Court had jurisdiction to entertain the writ petition at the pre-detention stage.
Ratio Decidendi: 1. The provisions of Section 3(1) of the COFEPOSA Act can be invoked only with a view to prevent a person from acting in any manner prejudicial to the conservation or augmentation of foreign exchange. 2. A detention order under Section 3(1) of the COFEPOSA Act must be based on clear and specific grounds. Vague and irrelevant grounds cannot be the basis for a detention order. 3. A detention order must be passed after due application of mind. A detention order passed in haste without application of mind is illegal. 4. The impugned act attributed to the husband of the petitioner was not, in fact, with the object of conservation and augmentation of foreign exchange. 5. A writ petition challenging a detention order can be entertained by the High Court at the pre-detention stage if the petitioner can show that the detention order is not passed under the Act under which it is purported to have been passed, that it is sought to be executed against a wrong person, that it is passed for a wrong purpose, that it is passed on vague, extraneous and irrelevant grounds, or that the authority which passed it had no authority to do so.
Final Decision: The court quashed the impugned detention order and the grounds of detention order. It also held that the quashing of the said order shall have no bearing on the complaint filed by the Customs authorities and the adjudication proceedings which are pending before the competent authorities.
1. Mrs. Arvind Shergill wife of Harinder Pal Singh Shergill has filed the present petition under Article 226 of the Constitution of India praying for the issuance of a writ or any other order quashing the order of detention bearing No. F. No. 673/70/98-CUS. VIII, dated 17-11-1998 passed by respondent No. 2, i.e. Joint Secretary COFEPOSA, under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act against her husband. The order so passed, according to the petitioner, is illegal, unconstitutional and based on extraneous, irrelevant and vague grounds.
2. According to the petitioner, her husband is a Senior Captain of Air India and has unblemished service record of 35 years, out of which 21 years he has spent in the active service of Indian Air Force and the rest of the service he has given to Air India. As per the terms of employment of her husband, he is paid some allowances regularly in foreign currency, which is duly accounted for in his tax return and tax paid at source. On 3-8-1998, he was scheduled to operate Air India flight Mumbai-Trivandrum-Doha-Bahrin and due to an enquiry he was left with no time to deposit the said currency into his bank locker and the same was brought to the Airport to deposit in his Airport Locker before leaving for the flight. The customs officials took his currency from his private car parked outside the Airport before he could shift it to the locker in the Airport premises. The customs officials cooked up a false case that he was smuggling it out of country. The husband of the petitioner was detained by the customs officials, taken into custody on 4-4-1998, beaten and some false statement was recorded implicating him in the smuggling of the alleged currency. The petitioner#25;s husband was produced in the court of Chief Metropolitan Magistrate, Mumbai for remand, where he filed a complaint before the Chief Metropolitan Magistrate retracting from the alleged confessional statement. He was released on bail on 14-8-1998. After his release the Customs Authorities submitted an application before Additional Sessions Judge, Greater Mumbai seeking cancellation of bail of the husband of the petitioner and the said application was dismissed on 17-11-1998. On 10-9-1998, the husband of the petitioner made representation to the Revenue Secretary, Ministry of Finance, New Delhi in which he stoutly denied the contents of the Panchnama prepared by the Customs Authorities and further categorically denied the happenings of the events dated 3/4-8-1998. He also highlighted the highhandedness by stating that a false case has been planted against him. It was the stand of the husband of the petitioner that his statement under Section 108 of the Customs Act has been recorded under duress. He made another representation to respondent No. 3 on 2-9- 1998 in which he submitted that he was in possession of vital evidence to justify that the foreign currency which was seized was neither found from his person nor from his baggage but the same was picked up from the motor vehicle parked outside the departure hall. The husband of the petitioner also highlighted that the major portion of the foreign currency alleged to have been recovered was acquired over a period of time from his employer i.e. Air India under the service rules with tax paid at source and the remaining foreign currency was left with him by his close relatives and his son for safe custody during their visit to India.
3. On 17-11-1998 when the bail application of the Customs Authorities for cancellation of bail was declined by the Court of Additional Sessions Judge, Greater Mumbai, respondent No. 2 issued an order bearing No. F. No. 673/70/98-CUS. VIII directing the detention of the husband of the petitioner in the custody of Central Prison, Nasik while exercising powers under Section 3(1) of the COFEPOSA. Immediately on coming to know of the detention order, the husband of the petitioner moved a comprehensive repr
