ELSY GEORGE Vs. UNION OF INDIA

JUDGEMENT

(1.) THROUGH this writ petition preferred under Article 226 of the Constitution of India, the petitioner who describes herself as wife of the detenu Nedumpurambil Poulose George has impugned the order dated 16-11-2000 passed by the second respondent-Mr. Somnath Pal, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, Central Economic Intelligence Bureau, 6th Floor, B Wing, New Delhi detaining the detenu under section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended), hereinafter also referred as the COFEPOSA Act. The detention order along with the grounds of detention, which are also dated 16-11-2000, was served on the detenu on 18-11-2000 and their true copies are annexed as Annexures A and B respectively to this writ petition.

(2.) THE prejudicial activities of the detenu which prompted the second respondent (hereinafter also referred to as the Detaining Authority) to pass the impugned order are contained in the grounds of detention. (Annexure B ). In short, they are as under:---An intelligence was received to the effect that M/s. Quality Apparel Exporters (P) Ltd. and M/s. Quality Exporters, both Mumbai based firms were indulging in export of rags declaring them to be ladies garments with the sinister object of defrauding the Government by way of claiming duty draw back. The intelligence further revealed that about five consignments were likely to be exported on 31-5-2000 and the aforesaid firms had been indulging in the said malpractice in the past and over 150 consignments were shifted from Air Cargo Complex, Sahar, during January, 2000 to May, 2000 and the said firms obtained the duty draw back fradulently which ran into crores of rupees. In pursuance of the said intelligence, three consignments of cargo declared to be ladies skirts were noticed in the shed, Air- Cargo Complex, Sahar in respect of which the "let shipment" orders were given after the goods were examined and these goods were being palletized for air lifting by a chartered Sudan Air ways Flight arriving at Bombay at 10. 00 hours on 1-6-2000. The details of the shipping bills were as under:-Since the goods covered by the aforesaid shipping bills comprised of 700 packages, it was not possible to examine the same at that time and consequently entire lots were drawn from the shipment and segregated in the shed so that a detailed examination could be carried out. On 2-6-2000, officers of the Rummaging and Intelligence Wing in the presence of independent panch witnesses examined the aforesaid 700 packages and discovered that 695 packages consisting of roughly stitched up rags and wet cloth pieces. The details of their examination were recorded in the panchanama. The export documents pertaining to the above shipments were retrieved from the office of M/s. Cambata Aviations, the handling agents of Sudan Airways which contained duplicate set of invoices. During the course of investigation, it was revealed that Mr. C. D. N. Singh was the Managing Director of M/s. Quality Apparel Exporters (P.) Ltd. and his wife Parimala Singh was the Managing Director of M/s. Quality Exporters which was a proprietory concern owned by Parimala Singh wife of Mr. C. D. N. Singh. Consequently, summonses were issued to both of them. From the statement of Mr. C. D. N. Singh recorded on 1-8-2000, it came to light that the detenu used to sign papers for quality exporters and he did not remember who had authorised him to do so. On 16-6-2000 the detenu stated in his statement that he had joined M/s. Quality Exporters in the year 1976 and continued to work in the said company till 1997, in which year he was shifted by the management to M/s. Quality Exporters. He stated that he used to take instructions from Mr. Aditya Singh (son of the aforesaid Mr. C. D. N. Singh) a director in M/s, Quality Apparel and was looking after the export management as per the verbal instructions of Mr. Aditya Singh. On being shown the export related documents against seven shipping bills dated 30-5-2000, namely 44215759, 4425761, 4425763, 4435754, 4425769, 4425767, and 4425764, he admitted that he had signed them. In his statement dated 23-6-2000, the detenu stated that he signed the documents as per the instructions of Mr. Aditya Singh and he did not have any knowledge that the directors of the said firm were making false exports with a view to make drawback entry and he denied that he had connived with the directors of the firm. A perusal of the grounds of detention would show that the gravamen of the allegation against the detenu is that after preparing the export documents under the instructions of Mr. Aditya Singh and signing them, he forwarded them to one Dashrathlal Bhagwandas Gupta a co-detenu, clerk in M/s. Freight Wings and Travels Ltd. , Customs House Agent of M/s. Quality Apparel Exporters (P.) Ltd. and M/s. Quality Exporters. In para 49 of the grounds of detention, the Detaining Authority has shown his subjective satisfaction that he was reasonably satisfied that the activities of the detenu amounted to smuggling of goods as defined in section 2 (39) of the Customs Act and as adopted in the COFEPOSA Act through section 2 (e ). In para 50, the Detaining Authority has recorded his subjective satisfaction that in order to prevent the detenu from indulging in smuggling activities in future, it was imperative to detain him under the COFEPOSA Act. A perusal of the grounds of detention would also show that the Detaining Authority has apprised the detenu of his right to make a representation to various authorities.

(3.) WE have heard learned Counsel for the parties. Although in this writ petition Mr. Maqsood Khan, learned Counsel for the petitioner, has pleaded a large number of grounds numbered as Ground Nos. 4 (i) to 4 (vii) in the petition but, since in our view, this petition deserve to succeed on Ground No. 4 (iii), we are not adverting to the other grounds of challenge pleaded in the petition. Ground No. 4 (iii) in substance is as under:---The sponsoring authorities failed to place before the Detaining Authority a very vital and material document i. e. copy of the F. I. R. lodged by C. B. I. against Mr. C. D. N. Singh, Mr. Randhir Singh, Mr. Aditya Singh and some Customs Officers wherein the detenu is not named. The said F. I. R. would have indicated to the Detaining Authority that the real culprits were the employers of the detenu and some customs officers and the detenu was a poor servant acting under the instructions of his employers. The aforesaid F. I. R. , was capable of influencing the subjective satisfaction of the Detaining Authority one way or the other and its non-placement by the sponsoring authority before the Detaining Authority has rendered the impugned order null and void and its non-supply to the detenu has violated his fundamental right of making an effective representation under Article 22 (5) of the Constitution of India. It has been averred in Ground No. 4 (iii) that copy of the F. I. R. referred to therein, is annexed as Annexure E to the petition.