1987 (9) TMI 434 - HC - Indian Laws

Court Upholds Detention Order Under COFEPOSA Act; Rejects Claims of Vagueness and Improper Service During Custody.

The writ petition was dismissed, with the court upholding the validity of the detention order under the COFEPOSA Act. The court found no merit in the ... - Issues Involved:1. Consideration of bail application and retraction of confession.2. Vagueness and uncertainty in the detention order.3. Detention order served while the detenu was already in judicial custody.4. Particularization of the nature of dealing in smuggled goods.5. Relevance of the seizure mahazar and the opinion of the goldsmith.Issue-wise Detailed Analysis:1. Consideration of Bail Application and Retraction of Confession:The petitioner argued that the bail application dated 18-11-1986, which contained the detenu's retraction from his confession, was not placed before the detaining authority. The court found that although the bail application itself was not placed, the detaining authority was aware of the retraction through other documents such as letters and telegrams sent by the detenu and his counsel. The court emphasized that the failure to place a specific document does not equate to a failure to consider a vital fact if such fact was considered by other means. The court cited the Supreme Court's decision in Bhawarlal Ganeshmalji v. State of Tamil Nadu, which supports the view that the consideration of the fact of retraction is sufficient.2. Vagueness and Uncertainty in the Detention Order:The petitioner contended that the detention order was vague and uncertain because it used the disjunctive word 'or' in describing the activities sought to be prevented. The court rejected this argument, explaining that the language used in the order was in accordance with Section 3(1)(iv) of the COFEPOSA Act, which excludes activities mentioned in the preceding sub-clause. The court noted that using the word 'or' was grammatically correct and necessary to exclude specific activities, thus not rendering the order vague.3. Detention Order Served While the Detenu Was Already in Judicial Custody:The petitioner argued that the detention order was invalid as it was served while the detenu was already in judicial custody, without considering the likelihood of his release. The court distinguished this case from the Supreme Court's decision in Binod Singh v. District Magistrate, Dhanbad, noting that the detenu's custody was temporary due to the cancellation of bail by the surety's request. The court found that there was an imminent possibility of the detenu's release on bail, justifying the service of the detention order.4. Particularization of the Nature of Dealing in Smuggled Goods:The petitioner claimed that the detention order failed to specify the nature of the dealing in smuggled goods, rendering it invalid. The court held that the word 'dealing' in Section 3(1)(iv) of the COFEPOSA Act should be understood in the context of the legislation's purpose. The court found that the detenu's activities, as admitted in his statement under Section 108 of the Customs Act, clearly fell within the scope of 'dealing' in smuggled goods, and no further particularization was necessary.5. Relevance of the Seizure Mahazar and the Opinion of the Goldsmith:Although these issues were not pursued in detail by the petitioner's counsel, the court addressed them briefly. The court found that the seizure mahazar was valid despite not being drawn on the spot, as the same witnesses were present throughout the process. The court also found the goldsmith's opinion on the gold's foreign origin to be relevant, supported by the detenu's own admission.Conclusion:The court dismissed the writ petition, finding no merit in the arguments presented by the petitioner. The detention order was upheld as valid and legally justified under the provisions of the COFEPOSA Act.