2012 (10) TMI 994 - HC - Indian Laws

Court quashes detention order under COFEPOSA Act due to failure to consider surrendered passport

The Court ruled in favor of the petitioner in a Writ Petition seeking to quash a detention order under the COFEPOSA Act. The Court found that the ... Detention order under COFEPOSA Act - retaining the passport of the detenu - Held that:- In the present case, the detention order was passed under Section 3(1)(i) of COFEPOSA. The Customs Department has retained the passport of the detenu. The likelihood of the appellant indulging in smuggling activities was effectively foreclosed. The contention that despite the absence of a passport, the appellant could or would be able to continue his activities is based on no material but was a piece of pure speculation. RAJESH GULATI Versus GOVT. OF NCT. OF DELHI & ANR. [2002 (8) TMI 832 - SUPREME COURT] In the case of Mohammed Ashfaq Hallare (2012 (6) TMI 844 - BOMBAY HIGH COURT), the Division Bench was dealing with the order of detention under sub-section (1) of Section 3. This was also a case where the argument was that the detenu was not possessing any passport which completely ruled out the possibility of the detune travelling abroad and indulging in smuggling goods in future. Even this Court has dealt with the same submission based on a case of Abdul Sathar (Supra) made by the learned APP. This Court rejected the submissioin. As the order of detention has been based only on clause (i)of sub-section (1) of Section 3, the order of detention must go only on the basis of this ground. Hence, as the Petition deserves to succeed on this ground. This Hon'ble Court be pleased to issue a Writ of Habeas Corpus or any other appropriate Writ, order or direction quashing and setting aside the said order of detention Issues:1. Writ Petition under Article 226 seeking Writ of Habeas Corpus to quash detention order under COFEPOSA Act.2. Consideration of voluntary surrender of passport by detaining authority.3. Legal implications of passport retention by authorities in preventive detention orders.4. Applicability of case laws in determining the validity of detention order based on possession of passport.5. Decision on the writ petition based on the surrender of passport.Analysis:1. The petitioner filed a Writ Petition seeking to quash a detention order under the COFEPOSA Act. The petitioner argued that the detaining authority did not consider the voluntary surrender of the passport by the petitioner to the Sponsoring Authority on the same day the detention order was issued. The petitioner contended that this fact was crucial as it was not taken into account by the detaining authority when passing the detention order.2. The detaining authority, in response, stated that the detention order was necessary based on the detenu's potentiality for prejudicial activities. However, the detaining authority did not dispute the voluntary surrender of the passport by the petitioner. The detaining authority's affidavit did not address the specific issue of the surrendered passport and its implications on the detention order.3. The Court referred to a decision of the Apex Court in a similar case where the passport of the detenu was retained by the authorities. The Court highlighted the significance of passport retention in preventive detention orders to prevent the detenu from engaging in smuggling activities. The Court emphasized that the absence of a passport effectively foreclosed the likelihood of the detenu continuing such activities, as it was based on speculation without any material evidence.4. In another case cited by the petitioner's counsel, the Division Bench dealt with an order of detention under Section 3(1) of the COFEPOSA Act. The argument was raised that the detenu's lack of possession of a passport eliminated the possibility of future smuggling activities. However, the Court rejected this argument, emphasizing that the detention order was based on specific grounds under Section 3(1)(i) and should be upheld on those grounds alone.5. Ultimately, the Court found merit in the petitioner's argument regarding the voluntary surrender of the passport and its implications on the detention order. The Court ruled in favor of the petitioner, quashing the detention order and directing the detenu to be set at liberty based on the failure of the detaining authority to consider the surrendered passport in issuing the detention order.This detailed analysis of the judgment highlights the legal arguments presented, the significance of the surrendered passport in preventive detention cases, and the Court's decision based on the specific grounds raised in the writ petition.