2024 (7) TMI 871 - HC - Customs

COFEPOSA detention orders must specify exact activity under Section 3(1)(iii) for valid preventive detention

The Bombay HC held that detention orders under COFEPOSA must be strictly construed due to their extraordinary nature in depriving personal liberty without ... Detention of an accused to prevent him from smuggling goods in exercise of power under Section 3 (1) of the Customs Act - right to prefer a representation - COFEPOSA - HELD THAT:- It is a settled position of law that if a statutory enactment confers an extraordinary power on the executive, to detain a person without recourse to the ordinary laws of land and by surpassing the stage of trial, exercise of such power places the personal liberty of such a person in extreme peril, as he has very limited right to raise a challenge to such an order and, therefore, it is necessary that such a law has to be strictly construed and the power to be exercised with extreme care, scrupulously within the bounds laid down by the statute. If statute permits detention on the specific grounds and as under the COFEPOSA Act, to prevent a detenu from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from smuggling goods, or abetting the smuggling of goods, or engaging in transporting or concealing or keeping smuggled goods etc., all the acts being separated and distinct must receive its connotation and the detenu must be tested against the prevented acts, as specified in the COFEPOSA Act. In a similar situation, when clause (iii) of Section 3 (1) has clubbed three activities in relation to the smuggled goods i.e. either its transport or its concealment or keeping the smuggled goods, it was imperative for the Detaining Authority to specify to the detenu as to which of these activities or all of the activities in which the detenu was engaged, were necessary to be prevented, as the act was prejudicial to the conservation or augmentation of foreign exchange - In absence of such a clarity being offered to the detenu, who had a right to prefer a representation, being aggrieved thereof and had a right to get a decision thereon, the detention order is vitiated by non-application of mind and, hence, it cannot be sustained. Application disposed off. Issues Involved:1. Legality of the Detention Order under COFEPOSA Act.2. Application of Mind by the Detaining Authority.3. Use of Disjunctive vs. Conjunctive Language in the Detention Order.4. Right to Make Representation under Article 22 of the Constitution of India.Detailed Analysis:1. Legality of the Detention Order under COFEPOSA Act:The detenu, Rakesh Ramdas Jejurkar, was detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) by the Joint Secretary to the Government of India. The detention was aimed at preventing him from smuggling goods, abetting smuggling, and engaging in transporting, concealing, or keeping smuggled goods. The grounds for detention included reports from the Directorate of Revenue Intelligence (DRI), highlighting the detenu's role in smuggling Areca nuts from Dubai to India. The detenu was described as a habitual offender involved in systematic smuggling activities.2. Application of Mind by the Detaining Authority:The Petitioner argued that the Detaining Authority failed to apply its mind properly, as the detention order used the disjunctive word 'or' instead of the conjunctive word 'and.' This, according to the Petitioner, indicated that the Detaining Authority was not sure which specific activity needed to be prevented, leading to a non-application of mind. The Petitioner relied on the Supreme Court's decision in Kishori Mohan Bera Vs. The State of W.B., where a similar use of disjunctive language led to the quashing of the detention order.3. Use of Disjunctive vs. Conjunctive Language in the Detention Order:The Respondent, represented by Mr. Sandesh Patil, argued that the use of the disjunctive 'or' does not necessarily imply non-application of mind. He cited the Madras High Court's decision in Mrignaini Kanwar Vs. State of Tamil Nadu, where a similar argument was rejected. The Court in that case held that the use of disjunctive language does not automatically lead to the conclusion that the Detaining Authority did not apply its mind.However, the High Court of Bombay, in this case, found that the use of disjunctive language in the detention order indicated a lack of clarity and certainty about the specific activities that needed to be prevented. The Court noted that the Detaining Authority must clearly specify which activities of the detenu are intended to be prevented, as this is crucial for the detenu to make an effective representation.4. Right to Make Representation under Article 22 of the Constitution of India:The Court emphasized that Article 21 of the Constitution of India ensures that no one shall be deprived of their liberty except in accordance with the procedure established by law. When a person is detained preventively, the safeguards under Article 22(4) and (5) must be strictly adhered to. The Court held that the burden of proving that the detention is in accordance with the law lies on the Detaining Authority. The Detaining Authority must act with care and caution, as preventive detention deprives a person of their liberty without a trial.The Court concluded that the detention order, as it stood, failed to provide the necessary clarity required for the detenu to make an effective representation. The use of disjunctive language indicated a lack of application of mind, making the detention order arbitrary and unsustainable.Conclusion:The High Court of Bombay quashed the detention order dated 03/10/2023, issued under the COFEPOSA Act, and directed that the detenu, Rakesh Ramdas Jejurkar, be set at liberty. The Court found that the use of disjunctive language in the detention order indicated non-application of mind by the Detaining Authority, thereby violating the detenu's right to make an effective representation under Article 22 of the Constitution of India. The Court did not delve into other grounds for challenging the detention order, as it was already set aside on this primary ground. No order as to costs was made.