1988 (10) TMI 242 - HC - Service Tax

Detainee denied proper legal representation, release ordered under COFEPOSA Act.

The court found that the detenue was denied proper legal representation before the Advisory Board, violating Article 14 of the Constitution. Additionally, ... Preventive detention Issues Involved:1. Denial of representation by a legal practitioner before the Advisory Board.2. Non-supply of vital documents to the detenue.3. Validity of the presumption regarding foreign origin of the seized gold.Issue-wise Detailed Analysis:1. Denial of Representation by a Legal Practitioner:The first contention raised by the petitioner was that the detenue was denied the opportunity to be represented by his advocate before the Advisory Board, while the department was represented by officials from the Customs and Central Excise Department. This was argued to be a violation of Article 14 of the Constitution, which guarantees equality before the law. The respondents contended that the officials present were not legal practitioners but departmental officers without legal qualifications. The court referred to the Supreme Court judgment in A.K. Roy v. Union of India, which established that if the government takes the aid of legal practitioners or advisers before the Advisory Board, the detenue must be allowed the same facility. The court found that the presence of high-ranking departmental officers, who could answer queries from the Board, amounted to legal representation. Thus, the refusal to allow the detenue representation by an advocate was deemed discriminatory and a violation of Article 14, denying the detenue a proper opportunity to be heard.2. Non-supply of Vital Documents to the Detenue:The second contention was that the detaining authority failed to supply the detenue with the statement recorded by the SHO, which was relied upon in the grounds of detention. Article 22(5) of the Constitution and Section 3(3) of the COFEPOSA Act mandate that the grounds of detention and the documents relied upon must be communicated to the detenue within a specified period. The respondents admitted that the statement was recorded and placed before the detaining authority but argued that it was not relied upon in the grounds of detention. The court noted inconsistencies in the respondents' statements and concluded that the statement was indeed relied upon. The failure to supply this document was a violation of the detenue's constitutional rights, as it denied him the opportunity to make an effective representation.3. Validity of the Presumption Regarding Foreign Origin of the Seized Gold:The third contention was that the sponsoring authority did not test the purity of the seized gold to confirm its foreign origin, relying solely on the foreign markings. The respondents countered that the gold was tested by a certified goldsmith and found to be of 24 carats purity. However, the report of this goldsmith was not supplied to the detenue. The court held that this report was a vital document, as the determination of the gold's foreign origin was based on it. The non-supply of this report constituted another violation of Article 22(5) of the Constitution and Section 3(3) of the COFEPOSA Act.Conclusion:In light of the findings on the first two contentions, the court did not need to delve deeply into the third contention but noted it for completeness. The cumulative effect of these violations led the court to conclude that the detention of Shri Ghanshyam under the COFEPOSA Act was not justified. Consequently, the court ordered his immediate release unless he was required in any other case.