- (1.) These appeals arise out of the following facts: The son of the Appellant, Nazhar Ahmed by name, was detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) by the order of the Additional Chief Secretary to the Government, Home Department dated 20th January, 2010. As per the case put up against the detenu, he had been arrested at the Bangalore International Airport after he had been found in possession of 4.35 kgs. of Gold Jewellery which he had not declared to the Customs. He moved an application for bail which was rejected by the Special Court for Economic Offences. He thereafter filed an appeal before the City Civil and Sessions Judge, Bangalore (which was numbered as Criminal Miscellaneous No. 4858 of 2009) which was ultimately allowed and bail was granted to him on the 5th December, 2009. He was however detained under the COFEPOSA on the 24th January, 2010. He was thereafter produced before the Advisory Board and the Board too confirmed his detention for a period of one year from the date of his detention. A writ petition was thereafter filed by the Petitioner impugning the detention of her son. Before the High Court, several submissions were made: (i) that the advisory board did not send a report within 11 weeks from the date of the order of detention as required by Section 8(c) of the COFEPOSA; (ii) that in view of the seizure of the passport of the detenu by the Respondents, the apprehension of the detaining authority that the Petitioner's son would continue his smuggling activities could not be accepted as it would not have been possible for him to leave India without a passport. In reply, the Government's stand was that the report of the Advisory Board has been submitted within time and that the Additional Chief Secretary had made the detention observing that there were clear chances that the detenu would continue his smuggling activities despite the seizure of his passport as the smuggling activities could continue even within India after he had been released on bail.
(2.) The High Court examined both the contentions and held that there was no violation of Section 8(c) of the COFEPOSA and insofar as the second contention was concerned, the apprehension that if enlarged on bail the detenu could continue with his smuggling activities without even travelling abroad was a possibility, and as such, the detention order was justified. The writ petitions were, accordingly, dismissed.
(3.) Mr. K.K. Mani, the learned Counsel for the Appellants has raised substantially one plea before us. He has pointed out that this Court had upheld the vires of several preventive detention statutes primarily on the ground that adequate safeguards for the protection of the rights of a detenu had been provided while noticing that smuggling activities by individuals was a matter of deep concern to India and its economy, but if the procedural safeguards were in any manner not observed, the detention order would fail. The learned Counsel has in this connection relied on the observations made by this Court in Smt. Icchu Devi Choraria v. Union of India and Ors., 1980 4 SCC 531 and Kamlesh kumar Iswardas Patel v. Union of India and Ors., 1995 4 SCC 51. He has pointed out that in the light of the observations in these two judgments, if the detaining authority was oblivious of certain significant facts with regard to the detention that itself was a ground for the quashing of a detention order. In this background, he has submitted that the observations of the detaining authority and the High Court therefore, that in case the detenu was released from jail, he could continue with his smuggling activities within India, notwithstanding that he could not travel abroad as his passport had been seized, was not acceptable as there was no material to justify this conclusion. In this connection, the learned Counsel has placed reliance on Rajesh Gulati v. Govt. of NCT of Delhi and Anr., 2002 7 SCC 129 and Gimik Piotr v. State of Tamil Nadu and Ors., 2010 1 SCC 609.;