HCP/1164/2001 of R.RANI Vs STATE OF TAMIL REP.BY on 19 December 2001

: O R D E R

(This Order of the Court was delivered by S.Jagadeesan,J)

The petitioner is the wife of the detenu Ravikumar, sonof Govindan, who had been detained under the Conservation of ForeignExchange and Prevention of Smuggling Activities Act, 1974. It is stated that the detenu made a bill of entry on behalf of one M/s. MajesticInternational for the import of 360 table fans. On opening the saidconsignment, a large number of electronic equipments and other items werefound valuing Rs.90,94,760/- as against the declaration. Consequentlyproceedings were initiated against him and the order of detention waspassed on 26.6.2001.

2. The detenu was served with a show-cause notice by the customs authorities on 26.7.2001 for which the detenu submitted a replyon 31.7.2001. The same was received by the authorities on 1.8.2001. TheAdvisory Board Meeting was held on 7.8.2001 and the order of detentionwas confirmed by the concerned authority on 10.9.2001.

3. It is the contention of the learned counsel for the petitioner that the show-cause notice issued by the customs authoritiesand the reply submitted by the detenu were not placed before theconfirming authority before ever the order of detention was confirmed.The nonplacement of those documents would vitiate the impugned order ofdetention, since it has a bearing in respect of the subjectivesatisfaction to be formed by the confirming authority. The learnedcounsel for the petitioner also placed his reliance on the judgment ofthis Court in H.C.P.843/2000 dated 25.8.2000 wherein a reliance wasplaced yet another judgment of this Court in H.C.P.14444/99 dated10.4.2001.

4. The learned counsel for the respondents contended that the said documents were not placed before the confirming authority.But, however, contended that the non-placement of those documents beforethe confirming authority will not vitiate the impugned order ofdetention, as the documents have no relevance for the confirmingauthority to confirm the impugned order of detention.

5. We carefully considered the above contention of the respective counsels. We also perused the records. Our work has beenlessened in view of the earlier precedents relied upon by the learnedcounsel for the petitioner. In the judgment of the Division Bench ofthis Court, of which myself was a party, in the case of NOORUDEEN V. THEJOINT SECRETARY TO GOVERNMENT OF INDIA (HCP.843/2000 dated, 25.8.2000) ithas been held as follows:- "In fact, in identical circumstances when the reply submitted by thedetenu to the show cause notice was not placed before the Advisory Boardby the detaining authority, this court in H.C.P.No.1444 of 1999 dated10.4.2000 has quashed the detention order. The relevant passage isextracted herein:

Mr. K.Kumar, learned Standing Counsel for the Central Government, however, tried to argue that as of course, the detenus under the COFEPOSAAct are given the chance to appear through the counsel before theAdvisory Board and in this case also such an opportunity was given to thepetitioner and it was only after hearing the counsel for the petitioner,

the Advisory Board has expressed its opinion. The learned counsel,therefore says that there was no prejudice and the petitioner himselfcould have put those documents before the Advisory Board. We are afraidin view of the aforementioned Division Bench judgments of this Court, wecannot accept this defence by the respondents. If there is a breach ofduty in putting proper document before the Advisory Board, it wouldreflect against the rights of the detenu under Article 22(5) ofConstitution of India to make an effective and quick representationbefore the authorities against the detention order. It is the task ofthe Advisory Board itself to see the justification of the detentionorder. Therefore, if the relevant and material documents like the showcause notice under Section 124 of the Customs Act and the reply theretoby the detenu are not put before the Advisory Board, we are afraid thenecessary consequence must follow and the detention would then be liableto the vitiated.

This decision applies squarely to the instant case. Therefore, for thesame reasons, we quash the detention order and the detenu is directed tobe set at liberty, if he is not required in any other case by any otherauthority".

6. From the above laid principles, it is clear that the customs authorities are bound to place their show cause notice and thereply received from or on behalf of the detenu before the confirmingauthority, in case if the reply from the detenu is received much earlierto the confirmation of the detention order by the confirming authority.Consequently the non-placement of those relevant documents before theconfirming authority vitiates the order of detention.

7. For the reasons stated above, the H.C.P. is allowedand the order of detention is set aside. The detenu is directed to beset at liberty forthwith, unless his presence is required in connectionwith any other case.

(S.J.J.)(P.T.J.)

19.12.2001Index:Yes.KkrTo1. Secretary to Government,Public (SC) Department,Fort St. George, Chennai-9.

2. Secretary,Ministry of FinanceDepartment of Revenue,New Delhi.

3. The Superintendent of CentralPrison, Chennai-3.

S.JAGADEESAN,JANDP.THANGAVEL,J

H.C.P.NO.1164 OF 2001