LYNN A CURTIS Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition has been brought under Article 226 of the Constitution of India read with section 482 of the Code of Criminal Procedure seeking quashment of the detention order dated 11th of April 1989 passed by respondent No. 2 under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short COFEPOSA Act) with a view to preventing the petitioner from smuggling goods.

(2.) It is not necessary to refer to the facts of the case because this petition succeeds on a very short point. In para 8 of the petition it has been pleaded that in a complaint filed on the same facts as are enunciated in the grounds of detention under sections 133 and 135 of the Customs Act pre-charge evidence of three prosecution witnesses has been recorded on various dates prior to the passing of the detention order and the said pre-charge evidence was very material and relevant matters which should have been placed before the detaining authority as that could have influenced the mind of the detaining authority either way in considering whether the detenion order should be made or not and, it is urged, as such material evidence was not placed before the detaining authority the order of detention stands vitiated due to non-application of mind to the material evidence.

(3.) In the counter affidavit filed by the detaining officer Mr. A. K. Batabyal, Joint Secretary, it is not disputed that this pre-charge evidence was not placed before the detaming authority. The plea taken is that the fact of the pendency of the complaint before the Additions Chief Metropolitan Magistrate was duly considered by the detaining authority and stands reflected in the grounds of detention and the material already available with the detaining authority was sufficient for arriving at the subjective satisfaction. It was further pleaded that pre-charge evidence has no bearing in the presence of other sufficient material on record.