(1.) THROUGH this criminal writ petition, preferred under Article 226 of the Constitution of India, the petitioner, who describes himself as the brother of one Dashrathlal Bhagwandas Gupta, hereinafter referred to as the detenu, 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, Janpath Bhawan, 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 referred to as the "cofeposa Act") with a view to preventing him from smuggling goods in future. 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 C respectively to this writ petition.
(2.) THE prejudicial activities of the detenu, prompting the second respondent to issue the impugned order against him, are contained in the grounds of detention (Annexure-C ). In short the averment therein is as under : one M/s. Freightwings and Travel Limited are Customs House Agent, handling the export consignments of two firms, namely M/s. Quality Apparel Exports (P) Limited and M/s. Quality Exporters, both based at Mumbai. The detenu at the relevant time was working as Customs Clerk with M/s. Freightwings and Travel Limited. He had been working in that capacity for the last 16 years. Shipping bills were prepared by M/s. Quality Apparel Exports (P) Limited and given to the detenu for ladies skirts worth Rs. 8,44,98,749/- and subsidy or drawback was claimed on the said amount. But on the converse, what was actually being exported were rags and poor quality fabrics, which were crudely stitched, of the value of Rs. 7,40,031/ -. Since the detenu was the Customs Clerk, the averment in the grounds of detention is that he committed an offence under the Customs Act, 1962 and was guilty of smuggling and was liable to be detained under section 3 (1) of the COFEPOSA Act. In the grounds, the Detaining Authority has also referred to the statement of the detenu, recorded under section 108 of the Customs Act, 1962, wherein he admitted that since January, 2000 he had been clearing rags and crudely stitched fabrics as ladies skirts. Therein the Detaining Authority has stated that looking to the propensity and potentiality of the detenu to commit smuggling in future, it was imperative to detain him vide the impugned order. The detenu has also been communicated, in para 54 of the grounds of detention, his right to prefer representations to various authorities.
(3.) WE have heard learned Counsel for the parties. Although in this writ petition Mr. Maqsood Khan, learned Counsel appearing for the petitioner, has pleaded a large number of grounds, numbered as 6 (i) to 6 (vi), but since in our view this writ petition deserves to succeed on ground 6 (i) alone, we are not adverting to other grounds of challenge raised in the petition. Ground 6 (i) in short is that on 13-11-1987 the detenus employer M/s. Freightwings and Travel Limited were granted Customs House Agent (CHA) Licence under section 146 of the Customs Act, 1962, for transacting customs house business as shipping and clearing agents, which licence was valid, till 31-12-2003. Pursuant to the said licence, customs entry pass bearing Kardex No. G-431 was issued to the detenu, which also was valid till 31-12-2003, and similar passes were also issued to other staff members of the said concern. After seizure of goods, which were sought to be exported by M/s. Quality Apparel Exports (P) Limited and M/s. Quality Exporters on 2-6-2000, the Commissioner of Customs, Mumbai, vide his order dated 14-9-2000, a true copy of which has been annexed as Annexure-G to the petition, suspended the Customs House Agent Licence issued to M/s. Freightwings and Travel Limited, with immediate effect. Pursuant to that, the detenus employers M/s. Freightwings and Travel Limited vide letter dated 28-9-2000, addressed to the Deputy Commissioner of Customs, Personnel and Establishment Department, Ballard Estate, Mumbai, which was handed over to the Assistant Commissioner of Customs, Admn. Department, New Customs House, Mumbai on or about 3-10-2000, returned the original Customs House Agent (CHA) Licence, along with the original customs passes issued to their staff members, including the customs pass issued to the detenu, as is manifest from documents annexed as Annexure-H to the petition. The averment in ground 6 (i) is that since the Customs House Agent Licence of M/s. Freightwings and Travel Limited was suspended by the Commissioner of Customs and thereafter M/s. Freightwings and Travel Limited surrendered the said licence and customs entry passes issued thereunder, including the one issued to the detenu, there was not even a remote possibility of either M/s. Freightwings and Travel Limited or the detenu of indulging in any such alleged prejudicial activities in future. It has further been averred in ground 6 (i) that the said documents (annexed as Annexure-H to the petition) were vital documents and it was incumbent on the part of the sponsoring authority to have placed them before the Detaining Authority. It has also been averred in ground 6 (i) that failure to do so would vitiate the impugned detention order on a dual count:- (a) on account of non-placement of vital documents by the sponsoring authority before the Detaining Authority, the subjective satisfaction of the Detaining Authority, to detain the detenu, vide the impugned order, would be vitiated on the vice of non-application of mind; and (b) since copies of vital documents were not furnished by the Detaining Authority to the detenu, the latters fundamental right to make an effective and purposeful representation, guaranteed by Article 22 (5) of the Constitution of India, was impaired.