1985 (2) TMI 161 - HC - Customs

Court validates detention orders under COFEPOSA Act, affirms legality of Customs Act Section 108

THULASIAMMAL AND OTHERS Versus J0INT SECRETARY TO THE GOVERNMENT OF INDIA

THULASIAMMAL AND OTHERS Versus J0INT SECRETARY TO THE GOVERNMENT OF INDIA - 1987 (30) E.L.T. 415 (Mad.) Issues Involved:1. Validity of the orders of detention under Section 3(i) of the COFEPOSA Act, 1974.2. Constitution of the Advisory Board under Section 8(a) of the COFEPOSA Act.3. Violation of Article 22(4) of the Constitution.4. Applicability and enforcement of Section 3 of the Constitution (Forty-Fourth Amendment) Act, 1978.5. Validity of Section 108 of the Customs Act, 1962 under Article 21 of the Constitution.6. Allegations of prolonged detention and coercion by customs officials.7. Identification procedures and reliance on witness statements.8. Non-furnishing of photographs and forensic reports.9. Legal assistance during interrogation.Detailed Analysis:1. Validity of the Orders of Detention under Section 3(i) of the COFEPOSA Act, 1974:The petitioners challenged the validity of the detention orders made under Section 3(i) of the COFEPOSA Act, arguing that the constitution of the Advisory Board under Section 8(a) of the Act was violative of Article 22(4) of the Constitution. The Court examined the provisions and found that the constitution of the Advisory Board was in compliance with the existing clause (4) of Article 22 of the Constitution.2. Constitution of the Advisory Board under Section 8(a) of the COFEPOSA Act:The petitioners contended that the Advisory Board should be constituted in accordance with the recommendations of the Chief Justice of the appropriate High Court, as per Section 3 of the Constitution (Forty-Fourth Amendment) Act, 1978. However, the Court noted that Section 3 of the Forty-Fourth Amendment had not been brought into force by the Central Government, and thus, the existing provisions of Article 22(4) remained applicable.3. Violation of Article 22(4) of the Constitution:The petitioners argued that the continued detention beyond two months was illegal as it did not comply with the amended Article 22(4) of the Constitution. The Court held that since Section 3 of the Forty-Fourth Amendment had not been enforced, the existing clause (4) of Article 22, which allows for detention beyond three months with the approval of an Advisory Board, was applicable.4. Applicability and Enforcement of Section 3 of the Constitution (Forty-Fourth Amendment) Act, 1978:The Court referred to the Supreme Court's decision in A.K. Roy v. Union of India, which held that the Central Government's discretion to bring the provisions of the Forty-Fourth Amendment into force could not be compelled by a writ of mandamus. The Court expressed hope that the Central Government would bring Section 3 into force without further delay but concluded that it could not intervene in the matter.5. Validity of Section 108 of the Customs Act, 1962 under Article 21 of the Constitution:The petitioners contended that Section 108 of the Customs Act was ultra vires Article 21 of the Constitution as it enabled deprivation of personal liberty without a fair and reasonable procedure. The Court, relying on precedents, held that Section 108 did not authorize the customs authorities to detain or compel individuals to make involuntary statements. It only empowered customs officers to summon individuals for evidence or document production, and any coercion or threat used to obtain statements would vitiate the statements themselves.6. Allegations of Prolonged Detention and Coercion by Customs Officials:The petitioners alleged that the detenus were detained for prolonged periods and coerced into making statements. The Court found no factual basis for these allegations, noting that the detenus were examined on multiple days and not detained overnight, except in one case where the records did not support the claim of overnight detention.7. Identification Procedures and Reliance on Witness Statements:The petitioners argued that the identification procedures were arbitrary and unfair. The Court held that the identification by witnesses, who were landlords of the premises used by the detenus, was not arbitrary or against any provisions of law. The customs officials were not required to follow the procedure adopted in criminal cases for identification.8. Non-Furnishing of Photographs and Forensic Reports:The petitioners contended that the non-furnishing of photographs and forensic reports vitiated the detention orders. The Court found that the detenus were provided with the necessary documents and could have requested additional documents if needed. The Court held that there was no violation of the principles of natural justice or constitutional provisions.9. Legal Assistance During Interrogation:One of the detenus had filed a petition for legal assistance during interrogation, which was pending before the Supreme Court. The Court noted that the interrogation in question related to a different seizure and did not violate the Supreme Court's interim order. The Court concluded that the statements recorded did not vitiate the detention orders.Conclusion:The Court dismissed the writ petitions, finding no merit in the contentions raised by the petitioners. The request for leave to appeal to the Supreme Court was also rejected.