1989 (10) TMI 66 - HC - Customs

Detention order quashed under COFEPOSA Act for failure to consider evidence. Detenu to be released.

The court quashed the detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, due to the detaining ... COFEPOSA - Detention order - Evidence - Statement - Retraction of confession Issues Involved:1. Validity of the detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.2. Non-application of mind by the detaining authority.3. Legitimacy of the confessional statements and their retraction.4. Adequacy of evidence and procedural compliance by the authorities.Issue-wise Analysis:1. Validity of the Detention Order:The petitioner, the wife of the detenu, filed a writ of habeas corpus under Article 226 of the Constitution of India to challenge the detention order dated 17-5-1989, served on 29-6-1989, under Sections 3(i) and (iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The detenu was arrested for alleged complicity in offenses under Section 85 of the Gold Control Act and Section 135 of the Customs Act, 1962. The petitioner argued that the detention order lacked evidence of the detenu's complicity in the alleged offenses and that the order was vague and indefinite.2. Non-application of Mind by the Detaining Authority:The petitioner contended that the detaining authority did not apply its mind to the material facts, including the medical report and letters retracting the detenu's statements, which were not placed before the detaining authority. The court emphasized the necessity for the detaining authority to file an affidavit to rebut allegations of non-application of mind. The affidavit filed by Shri Kuldip Singh, Under Secretary, was deemed insufficient as he did not handle or process the case. The court referenced its earlier decision in M.P. No. 829 of 1989, stating that the detention order could not be sustained due to the lack of justification for not filing the detaining authority's affidavit.3. Legitimacy of the Confessional Statements and Their Retraction:The detenu's confessional statements under Section 108 of the Customs Act were allegedly obtained under duress and retracted through letters dated 8-4-1989 and 11-4-1989. The court noted that the department's denial of receiving these letters was insufficient without an affidavit from the concerned officer, Shri Jaiswal. The court found that the retraction letters were material documents that should have been placed before the detaining authority, indicating a serious lapse on the part of the department.4. Adequacy of Evidence and Procedural Compliance by the Authorities:The court examined the evidence presented, including the statements of the detenu and co-detenu, and found that the detention order was primarily based on the detenu's confessional statements. The court observed that the statements of co-detenu Ramkumar Agrawal and Sagarmal Jain did not implicate the detenu. The court also highlighted procedural lapses, such as the failure to inform the detenu's family about his detention and the non-supply of documents in Hindi, which was the detenu's only known language.Conclusion:The court concluded that the detention order was not in accordance with the law due to the non-application of mind by the detaining authority and the failure to place material documents before it. The detention order was quashed, and the detenu was ordered to be released forthwith, provided he was not required to be kept in custody for any other offense. There was no order as to costs.