Order
1. Leave granted.
2. This appeal is directed against the judgment dated 18-3-2005 of the High Court of Judicature at Bombay in Writ Petition No. 2482 of 2004 wherein the prayer of the appellant for quashing the order of detention dated 3-11-2004 purporting to be under Sections 3(1)(i) and (iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called as COFEPOSA) was dismissed.
3. The appellant herein questions the order of detention dated 3-11-2004 issued by Respondent 2 whereby the father of appellant has been detained in terms of the COFEPOSA.
4. The fact of the matter is as under:
On 20-8-2004 the detenu was intercepted by the officers of DRI after he had passed through the customs area to board the flight to Singapore. Foreign currency of USD 81000.00, Euro 7600.00 was seized from him along with 366.00 Singapore dollars which in terms of Indian currency would come to Rs 40,08,244.50p. The aforementioned amount was seized in terms of the provisions of the Customs Act, 1962. The detenu's statement under Section 108 of the Customs Act was recorded wherein he claimed that the seized currency was brought by him from Singapore after necessary declaration and the same was being carried to Singapore.
5. In the order of detention it was alleged that the same was necessitated not only with a view to prevent him from bringing in future smuggled goods but also as the detenu had been engaged in transporting or keeping smuggled goods.
6. Mr Mukul Rohatgi, learned Senior Counsel appearing on behalf of the appellant contended that from a perusal of the impugned order, it would appear that the same is almost the verbatim production of the proposal made to the detaining authority by the sponsoring authority only by altering the word “he” with “you”. With a view to appreciate the aforementioned contention of the appellant we may extract the following from the order of detention:
“That you does not have a ration card; that you travels frequently to Hong Kong, Singapore, United Kingdom and sometimes to Phillippines; that you arranges and organises tours for Asians; that you does not have a tour operator licence; that you assists your tourists in shopping and sight seeing; that you does not pay any tax in India; that you does not have any vehicle in India or abroad; that you are a Green Card-holder at Hong Kong; that you travel to-and-fro from Hong Kong many times; that you are holder of Gold Card issued by Air India as you are their frequent flier; that your Gold Card number is 043809; that you have a mobile phone at Hong Kong; that your Singapore mobile number is 90448535; that no case by Indian Customs or Police has been booked against you; that no cases are booked against you abroad; that you have travelled to Hong Kong and Singapore only from Mumbai Airport; that whenever you come from Hong Kong and Singapore and if you have foreign currency you declare the same at Customs Counter and obtains Currency Declaration Form (CDF); that when you return back you take the foreign currency and submits the CDF at the Customs Counter and the Customs retain the CDF that you have taken the CDF on 4-5 previous occasions.”
7. Keeping in view the nature of the submissions made at the Bar, we have directed the State to produce the records before us. Pursuant to the said direction, the records have been produced.
8. From a perusal of the records produced before us, it appears that the second respondent directed obtaining of some documents when the proposal for detention of the detenu was submitted. She also sought for the statement made by the detenu before the Additional Chief Metropolitan Magistrate. She further took note of a purported pre-detention representation made by the detenu on 18-4-2004. Detention order was passed upon discussions made in that behalf by her with three officers including Shri P.S Goyal, Deputy Director. It further appears that the order of detention as well as grounds therefor were formulated and placed before her for approval. It appears that only small changes were made by some officers.
9. Perusal of the proposal made by the sponsoring authority and the order of detention passed by the detaining authority would show that except by substituting word “he” by “you” no other change was effected.
10. But for the said change the proposal and the order of detention is verbatim the same.
11. Mr Naphade, learned Senior Counsel appearing for the respondent submitted that from the records produced before us it would be evident that there had been due application of mind on the part of Respondent 2 in passing the order of detention. This may be so but keeping in view the safeguards envisaged under Article 22 of the Constitution it was absolutely essential for the second respondent herein to apply her mind not only at the time of grant of approval to the proposal for detention but also when the actual order of detention and grounds thereof are prepared. To the aforementioned extent there has been no application of mind on the part of the second respondent herein, and, thus, we are of the opinion that the impugned order of detention dated 3-11-2004 cannot be sustained.
12. The views we have taken derive support from the judgment of this Court in Jai Singh v. State of J&K (1985) 1 SCC 561 wherein the Division Bench held:
“We had called for the records and the learned counsel for the State of Jammu & Kashmir has produced the same before us. First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the Senior Superintendent of Police, Udhampur to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father's name is mentioned as Sardar Ram Singh and the address is given as Village Bharakh, Tehsil Reasi. Thereafter it is recited ‘The subject is an important member of.…’ Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of detention, all that the District Magistrate, has done is to change the first three words ‘the subject is’ into ‘you Jai Singh, s/o Ram Singh, resident of Village Bharakh, Tehsil Reasi’. Thereafter word for word the police dossier is repeated and the word ‘he’ wherever it occurs referring to Jai Singh in the dossier is changed into ‘you’ in the grounds of detention. We are afraid it is difficult to find greater proof of non-application of mind. The liberty of a subject is a serious matter and it is not to be trifled with in this casual, indifferent and routine manner.”
13. For the reasons aforementioned the order of detention passed against the detenu Vashdev Gobardhan as also the impugned judgment cannot be sustained. It is quashed accordingly. He is directed to be released if not wanted in connection with any other case.
14. The appeal is allowed.