NAGIN CHANDJAM Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition has been moved by one NaginChand Jain for issue of a writ of habeas corpus under Article 226/227 ofthe Constitution of India for issue of a direction for release of the petitionerand for quashment of the detention order dated 2.1.1992 passed against himunder Section 3(1) of the Conservation of Foreign Exchange and Preventionof Smuggling Activities Act, 1974 (hereinafter to as COFEPOSA for the sakeof brevity).

(2.) Brief facts which gave rise to the present petition are as under:that on receipt of an intelligence that a huge quantity of contrabandsilver was being transported to Delhi by Mahindra Jeep bearing registrationNo. MP-09A-9007. the Officers of Directorate of Revenue Intelligence, DelhiZone intercepted the said vehicle on Delhi Mathura Road, Sarai khwajaPolice Check Post at about 16.00 hrs. on 16.12.1991 alongwith its twooccupants namely Shri Subhash Chandra Bhandari and Shri Dinesh Sharma.On search of the said vehicle it resulted in the recovery of silver weighing431.652 kgs. valued at Rs. 33,12,929.00. On the basis of the said seizure thehouse of the petitioner was also searched and the petitioner was taken awayfrom his residence i.e. 1-50, Ashok Vihar, Phase-1, New Delhi. The officersrecorded the statement of the petitioner u/Sec. 108 of the Customs Act (herein-after referred to as Act for the sake of convenience) under force, duressand torture. The petitioner was arrested alongwith Shri Subhash ChanderBhandari on 17.12.1991. The petitioner was produced before ACMM, NewDelhi where he retracted from his earlier statement made by him u/Sec. 108of the Customs Act. The petitioner was thereafter remanded to judicialcustody. The petitioner moved an application for release on bail on21.12.1991. The same was rejected. An application for bail was also movedbefore the Additional Sessions Judge, New Delhi on 26/12/1991.However, while the said application was pending an order of detention dated2.1.1992 was passed. The same was served on the petitioner on 3.1.1992.The petitioner thereupon wrote a letter on 9.1.19 92 to the Secretary, Govt.of India, Ministry of Finance, Department of Revenue, New Delhi forsupply of documents and other material information for making an effectiveand purposeful representation. The Central Government rejected the saidrequest vide order dated 23.1.1992. Arepresentation was again made tothe Central Government on 21.2.1992, however, the same was rejected vidememo dated 24.2.1992. The petitioner filed yet another representation on17.2.1992 before the Central Government where through he raised additionalgrounds. The Central Government confirmed the detention of the petitionerfor a period of one year from 3.1.1992 onwards vide order dated 31.3.1992.The said detention order is absolutely illegal, invalid and is thus liable to beset aside inasmuch as the detaining authority took into consideration quitea good number of documents which were not relevant and material for thepurposes of detention of the petitioner. It thus vitiated the subjectivesatisfaction of the detaining authority. It also goes along to show that thedetaining authority did not apply its mind to the grounds of the detentionof the petitioner properly at the time of the passing of the impugned orderdated 2.1.1992. Hence arose the necessity for the presentation of the presentwrit petition.

(3.) The respondent in their counter affidavit did not controvert theabove facts. However, it has been urged for and on behalf of the respondentthat the impugned detention order dated 2.1.1992 is perfectly legal and valid.It was passed after a due consideration and after taking into considerationall the relevant material with a view to preventing petitioner from abettingthe smuggling of goods and dealing in smuggled goods otherwise than byengaging in transporting or concealing smuggled goods in future.