Decided on July 11,1995

UNION OF INDIA Respondents


A.K.Datta, J. - (1.)By this Application under Article 226 of the Constitution of India the Petitioner-Detenu Pratic Kumar Sen in Jail (hereinafter referred to as detenu) has challenged the order of his detention under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as COFEPOSA ACT) made on 4th October 1994 by Sri K. L. Verna, Joint Secretary to the Govt. of India, specially empowered thereunder, with a view to preventing him from abetting smuggling of goods. He was detained on 21st October, 1994 in pursuance of the aforesaid detention order.
(2.)Stated briefly, the detenu is alleged to be involved in the import of three consignments of integrated circuits of foreign origin in the names of fictitious Firms, but actually meant for Sri V.N. Lakhi, another COFEPOSA Detenu. There was clearance of consignments of mis-declared goods and evasion of duty. The detenu had allegedly admitted his offence in his statement. His case was referred to the Central Advisory Board (COFEPOSA) for giving the opinion as to whether or not there is sufficient cause for his detention,
(3.)As held by the Supreme Court, preventive detention is an area where the Court been most strict and scrupulous in ensuring observance with the requirements of the law, and even where a requirement of law is breached in the slightest measure, the Court has not hesitated to strike down the order of detention or to direct the release of the detenu even though the detention may have been valid till the breach occurred and regardless of the social cost involved in the release of a possible renegade. The Court was not unmindful of the fact that the COFEPOSA Act has been enacted for the purpose of eradicating the evil of smuggling which is eating into the vitals of the notion like a cancerous growth and eroding the economic stability of the country; and when an order is made by the Court releasing a person detained under the Act it is quite possible that the effect of the order may be to let loose on the Society a Smuggler who might in all probability resume his nefarious activities causing incalculable mischief and hum to the economy of the nation. But, at the same time, the Court cannot forget that the power of preventive detention is a draconian power which is tolerated in a free society only as a necessary evil. The power to detain without trial is an extraordinary power constituting encroachment on personal liberty, and it is the solemn duty of the courts to ensure that this power is exercised strictly in accordance with the requirements of the Constitution and the law. The courts should always lean in favour of upholding personal liberty, for it is one of the most cherished values of mankind. Without it life would not be worth living. It is one of the pillars of free democratic society. It was thus observed that the courts must interpret the provisions of the Constitution and the law in regard to preventive detention without being in any manner trammelled by the fact that this is a case where a possible smuggler is seeking his release from detention. The courts have accordingly consistently shown great anxiety for personal liberty and refused to throw out a petition merely on the ground that it does not disclose a prima-facie case invalidating the order of detention. The Supreme Court had held in the decision in Icchu Devi Churaria v. Union of India and Ors., (1980) 4 SCC 531 that when a Rule is issued, it is incumbent on the Detaining Authority to satisfy the court that the detention of the petitioner is legal and in conformity with mandatory provision of the law authorising such detention. In answer to this Rule, the Detaining Authority must place all the relevant facts before the court which would show that the detention is in accordance with the provisions of the Act. It would be no argument on the part of the Detaining Authority to say that a particular ground is not taken in the petition. Once the Rule is issued it is the bounden duty of the court to satisfy itself that all the safeguards, provided by the law have been scrupulously observed, and the citizen is not deprived of his personal liberty otherwise than in accordance with law. The Supreme Court in Kamleshkumar lshwardas Patel v. Union of India & Ors., Judgment today 1995(3) SC 69 has reiterated that it is not unmindful of the harmful consequences of the activities in which the detenues are alleged to be involved. But while discharging the Court's Constitutional obligation to enforce the fundamental rights of the people, more specially the right to personal liberty, it cannot allow itself to be influenced by these considerations. It has been said that the history of liberty is the history procedural safeguards. The framers of the Constitution being aware that preventive detention involves a serious encroachment on the right to personal liberty took care to incorporate in Clauses. (4) and (5) of Article 22 certain minimum safeguards for the protection of persons sought to be preventively detained. These safeguards are required to be "jealously watched and enforced by the Court". Their rigour cannot be modulated on the basis of the nature of the activities of a particular person. The Supreme Court had observed in Narendra Purshotam Umram v. B. B. Gujral and Ors, etc. AIR 1979 SC 420 that the constitutional safeguards embodied in Art. 22(5) of the Constitution must be read into the provisions of section 8(b) of the COFEPOSA Act to prevent any arbitrary executive action. Merely because there is no express provision in section 8(b) of the said .Act placing an obligation to forward the representation made by the detenu, along with the reference to the Advisory Board, unlike those contained in section 9 of the preventive Detention Act, 1950 and section 10 of the Maintenance of Internal Security Act, 1971, it cannot be said that there is no obligation cast on the Government to consider the representation made by a detenu before forwarding it to the Advisory Board. Their Lordships had held therein that the Government has to reach its decision uninfluenced by the option of the Advisory Board. As observed therein, "Article 22(5) does not expressly say to whom the representation is to be made and how the Detaining Authority is to deal with the representation. But it is necessarily implicitly in the language of Art. 22(5) that the State Government to whom the representa tion is made should properly consider the representation, as expeditiously as possible. The constitution of an Advisory Board under section 8 of the Act does not relieve the State Government from the legal obligation to consider the representation of the detenu, as soon as it is received by it."

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