W. P. H. C. No. 135 of 2009. Case: Smt. Sushma M. Jain Vs Govt. of Karnataka and Ors.. High Court of Karnataka (India)
| Case Number | W. P. H. C. No. 135 of 2009 |
| Counsel | For Appellant: Kiran S. Javali, Chandrashekara K., Advs. and For Respondent: K.M. Nataraj, Addl. Adv. General and E.S. Indiresh, Addl. Govt. Adv. |
| Judges | Mrs. Manjula Chellur and V. Jagannathan, JJ. |
| Issue | Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (52 of 1974) - Sections 3, 3(1)(1) |
| Citation | 2011 CriLJ 1561 |
| Judgement Date | February 11, 2010 |
| Court | High Court of Karnataka (India) |
Judgment:
V. Jagannathan, J.
1. The challenge in this petition is to the detention order and the order of confirmation passed under the COFEPOSA Act, on the ground of delay in considering the representation given by the detenu and no strict compliance of the law by the authorities concerned as well as the order passed is not in conformity with COFEPOSA Act, Section 3(1)(i).
2. The brief facts are that the Officers of the Directorate of Revenue Intelligence examined the export consignments of the detenu on 10.6.2009 stuffed in two containers viz. CRXU 2031190 AND NESU 3523162 belonging to the detenu's firm M/s. Tirupati Exports, No.27, Industrial Estate, Chunchaghatta Road, Konankunte Post, Bangalore, and revealed that there was misdeclaration of quantity of export goods inasmuch as the examination revealed that the said containers contained 11,376 pieces of readymade garments as against declared quantity of 55,584 pieces of readymade garments and according to the Officers of Revenue Intelligence, number of cartons declared was 399 as against 306 in respect of cotton knitted Men's T-shirts and the quantity declared was 27,864 pieces as against the actual quantity found 3,792 pieces and in respect of 100% cotton material which is referred to in Sl. No.2 of the grounds of detention, number of cartons declared was 452 as against 329 which was actually found and the quantity declared was 27,720 pieces as against the actual quantity found 7,584 pieces. The export goods were seized under mahazar on 11.6.2009 and having regard to the material value of the goods estimated as against the declared goods in two export documents, the authorities, therefore opined that the quantity declared by the detenu was false and attracted morefully Section 2(39) of the Customs Act, 1962 read with Section 2(3) of COFEPOSA Act, 1974 and the Detaining Authority therefore was of the view that he was satisfied that a case for the detention of the detenu under Section 3(1)(i) of COFEPOSA Act, 1974 therefore is made out. Thereafterwards, the detenu was arrested on 12.6.2009 and order of detention was passed on 6.7.2009 and the said order was served on the detenu on 21.7.2009 and the order of confirmation of the detention order was passed on 24.9.2009.
3. In this petition for habeas corpus, the petitioner being the wife of the detenu Sri. Milap Ratan Chand Jain, has raised several grounds attacking the order of detention and these grounds are, delay in considering the representation by the Detaining Authority, document that came into existence after the detention order were not considered by the Advisory Board and the order of detention was not in conformity with COFEPOSA provisions under Section 3(1) and 3(1)(i) and the assistance of a lawyer was not given to the detenu and further there was a long delay in considering the representation and on these grounds, the detention order is assailed by the writ petitioner. The additional grounds raised are that the 1st respondent ought to have considered the representation given to the Advisory Board, independent of the opinion of the Advisory Board and there was delay of 54 days in considering the representation and as such there is violation of strict compliance of law having regard to Article 22(5) of the Constitution of India. Non-application of mind by the Detaining Authority is also one of the grounds that is urged in this petition.
4. We have heard the learned counsel appearing for the parties and perused the material placed.
5. Learned counsel appearing for the petitioner, relying on the Apex Court decisions and also of this Court, submitted that the grounds urged in this petition, therefore, are sufficient to hold that the order of detention and the confirmation order are violative of Article 22(5) of the Constitution of India and the Detaining Authority has not applied its mind to all the aspects of the case and as such the impugned orders are liable to be set aside as being contrary to the provisions contained in Article 22(5) of the Constitution of India. The decisions referred to in this regard by the learned counsel for the petitioner are Jayanarayan Sukkul v. State of West Bengal (AIR 1970 SC 675): (1970 Cri LJ 743); Kamleshkumar Ishwardas Patel v. Union of India (1995 SCC (Cri) 643); Harish Pahwa v. State of U.P. and others (1981 SCC (Cri) 589): (AIR 1981 SC 1126: 1981 Cri LJ 750); T. A. Abdul Rahman v. State of Kerala and others (1990 SCC (Cri) 76): (AIR 1990 SC 225: 1990 Cri LJ 578); H. G. Ravindra and another v. The State of Karnataka and another (1984 Cri LJ 45); K.M. Abdulla Kunhi v. Union of India and others AIR 1991 SC 574: (1991 Cri LJ 790); State of Maharashtra v. Zubair Haji Qasim ((2009) 1 SCC (Cri) 477): (AIR 2008 SC 2825: 2008 Cri LJ 3508); Kundanbhai Dulabhai Shaikh v. District Magistrate, Ahmedabad and others (1996 SCC (Cri) 470): (AIR 1996 SC 2998: 1996 Cri LJ 1981); and Rajesh Gulati v. Govt. of NCT of Delhi and another (2002 SCC (Cri) 1627): (AIR 2002 SC 3094: 2002 Cri LJ 4299). Our attention was...
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