1981 (6) TMI 131 - HC - FEMA

Court quashes COFEPOSA Act detention order citing non-disclosure and undue influence. State Govt decision flawed. Petitioner released.

Kaiser Otmar Versus State Of Tamil Nadu

The Court quashed the detention order under the COFEPOSA Act due to the non-disclosure of the petitioner's illegal custody and the undue influence of the ... - Issues Involved:1. Legality of the detention order under the COFEPOSA Act.2. Whether all relevant facts were considered by the detaining authority.3. Impact of the petitioner's alleged illegal custody prior to the detention order.4. The role and influence of the Screening Committee in the decision-making process.5. The relevance of the petitioner's potential to abscond versus the likelihood of future smuggling activities.Detailed Analysis:1. Legality of the Detention Order under the COFEPOSA Act:The detention order was passed under section 3(1) of the COFEPOSA Act, which allows for preventive detention to prevent smuggling activities. The order stated that the petitioner was detained to prevent him from smuggling goods and concealing smuggled goods. The Act permits such detention based on the subjective satisfaction of the detaining authority. However, the Court emphasized that while the subjective satisfaction cannot be reviewed on merits, the detaining authority must be informed of all relevant facts.2. Whether All Relevant Facts Were Considered by the Detaining Authority:The petitioner argued that the State Government was not informed of his illegal custody by Customs Officials from 15th to 18th January, which led to the extraction of confessional statements. The Court found that the State Government was unaware of the petitioner's illegal detention and the circumstances under which the confessions were obtained. This lack of information was deemed a significant omission, as it could have influenced the decision-making process.3. Impact of the Petitioner's Alleged Illegal Custody Prior to the Detention Order:The petitioner was arrested by Customs Officials on 15th January and remained in their custody until he was produced before the Magistrate on 18th January. The Court held that this period of custody was illegal as the petitioner was not produced before a Magistrate within 24 hours, violating Article 22(2) of the Constitution. The Court emphasized that the detaining authority should have been informed of this illegal custody, as it was a material fact that could affect the validity of the confessional statements.4. The Role and Influence of the Screening Committee in the Decision-Making Process:The Court noted that a Screening Committee, consisting of Customs Officials, played a significant role in the decision-making process. This committee evaluated the facts and influenced the detaining authority's decision. The Court expressed concern that the detaining authority might have relied heavily on the committee's assessment, which could undermine the independence of the decision-making process required under section 3(1) of the COFEPOSA Act.5. The Relevance of the Petitioner's Potential to Abscond Versus the Likelihood of Future Smuggling Activities:The grounds of detention indicated that the State Government's primary concern was that the petitioner might abscond to avoid prosecution, rather than preventing future smuggling activities. The Court found this reasoning flawed, as the COFEPOSA Act's purpose is to prevent future illegal activities, not to ensure prosecution for past acts. The Court highlighted that preventive detention should not be used as a substitute for judicial custody to prevent escape from legal consequences.Conclusion:The Court quashed the detention order, finding that the State Government's decision was vitiated by the non-disclosure of the petitioner's illegal custody and the undue influence of the Screening Committee. The Court directed the respondents to set the petitioner at liberty.