P MAHAVEER CHAND Vs. UNION OF INDIA

JUDGEMENT

(1.) These two petitions have been filed for the issue of a Writ of habeas corpus for releasing the detenus who are detained under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter called the COFEPOSA. The detention orders in respect of these two petitioners are dated 24.11. 1984.

(2.) Four points were raised in these writ petitions. Firstly it was contended that the mahazar for, the seizure had not been prepared in accordance with the Code of Criminal Procedure and it had not been shown to be a legal one and that the detaining authority presuming it to be in accordance with law, vitiates the entire order. This ground which is factual seems to be incorrect. The learned Counsel for the petitioners argued that the seizure was not effected in accordance with law mainly on the ground that the Intelligence Officer of the Directorate of Revenue Intelligence, Madras, who searched and seized the gold articles was not shown to be the proper Officer empowered for such purposes under section 106 of the Customs Act, 1962. This point was not specifically raised in the affidavits and therefore there was no opportunity for the respondents to meet that factual question. However the, respondents have now produced a Notification dated 8th February, 1963 which shows that all the Officers of the Directorate of Revenue Intelligence except those mentioned therein are empowered to exercise all the powers specified in sections 100, 101, 103, 104, 106, 107 and 110 of the Customs Act, 1962. There is no dispute that the Intelligence Officer who has drawn the mahazar is an Officer of the Directorate of Revenue Intelligence empowered to exercise such powers. In the circumstances factually there is no basis for the contention that the mahazar was not prepared in accordance with law by an Officer authorised in this behalf. Even otherwise we are unable to agree with the learned Counsel for the petitioners that we can presume that the seizure of the preparation of the mahazar was not in accordance with law, because acts by authorities can be presumed to be legal unless they are shown to be contrary to any law. In the circumstances this contention has no substance.

(3.) It is then contended by the learned Counsel for the petitioners that though under Art. 22(6) of the Constitution, a detaining authority can withhold disclosure of any document or fact when such authority considers that such disclosure will be against public interest, the detaining authority cannot withhold the disclosure mechanically stating that such disclosure a would be against public interest and it has to specifically give reasons for holding that it would be against public interest. What is contended by the learned Counsel for the petitioners is that since the orders of detention state that on information that one of the detenus in the case would receive smuggled gold biscuits and would be transporting, the whole proceedings are vitiated. The learned Counsel would further say that when the detenus asked for the source of information, it had not been furnished and the non-furnishing of that source of information had deprived them of the valuable right of effective opportunity to make their representation against the orders of detention. In this connection, the learned Counsel relied on a decision of Gujarat High Court in Bai Amina v. State of Gujarat and others, (1982) Crl.L.J. 1531: (1981) 22 Guj. L.R. 1186. In that case the learned Judges held that the mere fact that the relevant particulars and materials are furnished to the detaining authority in confidence by some person is not by itself a sufficient ground for withholding the disclosure of such particulars and materials, if those materials and particulars have been relied upon against the detenu and the disclosure of such materials and particulars would assist the detenu in making an effective representation against his detention. We may mention that in this case the source of information has not been furnished to the detenus and the gist of the information forms part of the orders of detention themselves.