ASHOK KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is a petition under Articles 226 and 227 of the Constitution of India read with Section 42, Cr.PC, for setting aside the order under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA Act), passed by respondent No. 1 and seeking further directions to the respondents to release the petitioner from their custody.

(2.) THE facts, which are relevant for the decision of the present petition, are that the petitioner was detained in Central Jail, Patiala, and it was alleged that he had been falsely implicated in this case with a view to save D.S. Kapoor, Customs Inspector. It was alleged that the petitioner was badly tortured and under threat of life he was made to make confessional statement to the effect that he was indulging in prejudicial activities. It was alleged that the order of detention dated 29.12.1999 (copy Annexure P1) was passed by the Joint Secretary to the Government of India under Section 3(1) of the COFEPOSA Act. It was further alleged that the grounds of detention were detailed in Annexure P2 dated 29.12.1999. It was alleged that the order of detention, Annexure P1, which was based on the grounds of detention, Annexure P2, was liable to be set aside. It was alleged that the petitioner was arrested on the night intervening 30/31.8.1999 and was in custody since then. It was alleged that the bail application filed by the petitioner before the CJM, the Sessions Judge and the High Court had been dismissed. It was alleged that the detaining authority had not taken into consideration the fact that the bail application of the petitioner had already been declined upto the High Court and as such there was no material with the detaining authority to come to the conclusion that there was imminent possibility of the release of the petitioner on bail. It was further alleged that the detaining authority had also not taken into consideration that there was no previous activity of the petitioner indulging in any prejudicial activity. It was alleged that there was no material with the detaining authority to come to the conclusion that if released on bail, the petitioner will again indulge in similar activities, especially when the bail application of the petitioner had already been declined. It was further alleged that the alleged prejudicial activity was dated 31.8.1999, whereas the order of detention was passed on 29.12.1999 and there was no explanation for the delay of about 4 months in passing the order of detention. It was alleged that in the detention order, it was mentioned by the detaining authority that the bail application of the petitioner was pending in the High Court. It was further alleged that instead of opposing the said bail application of the petitioner, the order of detention was passed against the petitioner. It was further alleged that the dismissal of the bail application by the High Court also showed that there was no imminent (possibility of) release of the petitioner from detention. It was further alleged that the petitioner made representation to the Union of India on 6.3.2000, but the same had not so far been decided and there was no explanation for the delay in not deciding the representation of the petitioner and in this manner, the detention of the petitioner had become illegal. It was also alleged that the petitioner had made a representation to the Secretary, Ministry of Finance on 6.3.2000 and up till now, the petitioner had not received any reply and there was no explanation for the delay in not deciding the representation of the petitioner and as such the detention order had become illegal. It was further alleged that the petitioner had also made representation to the Chairman, Advisory Board on 6.3.2000 and up till now, no reply had been received and there was no explanation for not sending the reply to the petitioner. It was further alleged that the petitioner was not produced before the concerned authority within the stipulated time and as such, the detention had become illegal.

(3.) I have heard learned counsel for the parties and gone through the record carefully.