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Judgment
P.K. Misra, J.—Heard the learned Counsel appearing for the parties.
The order of preventive detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 Act is in
question.
The detention order was passed on 17.10.06. In the grounds of detention dated 17.10.2006 after narrating the fact that detenu had come from
Hongkong, it is stated in para 2 as follows:
(ii) The officers of DRI conducted search of your person and as a result of the said search, nothing incriminating was recovered or seized from you.
On examination of the above hand and checked in baggages, the officers of DRI found them to contain watches, watch cases, watch spares and
polythene wrapped packings which contained Rado brand-Diastar (Swiss) model No. 636, 0313.3 watches with golden metal case without strap
kept concealed. You have not produced any document showing the purchase value of the goods. The total value of the above said goods was
arrived at Rs. 17,39., 900/-(CIF) with the assistance of the Customs officers, internet and on market enquiries and the DRI officers seized them
under the said mahazar on the reasonable belief that the same were liable to confiscation under the Customs Act, 1962 since the same were in
trade quantity and therefore not a bonafide passenger baggage and you have not declared some of the goods under-declared the values of
declared goods. The DRI officers also seized the above mentioned air ticket, boarding pass, counterfoil of baggage tag. the Customs declaration
and packing materials used for concealing Rado brand watches under the said mahazar.''
(emphasis added)
In the Mahazar also there is a reference to the valuation and it is indicated that the valuation was arrived at with the assistance of the Customs
Officers, Internet and on market enquiries.
At this stage the petitioner had made a representation challenging the basis of the valuation and even after the order of detention was passed,
representation was made on behalf of the detenu challenging the basis of the valuation. Reply was given to the detenu stating even though the
detenu was produced before the Magistrate he had not challenged the basis of the valuation. It was reiterated in such reply that the value has been
fixed with the assistance of the Customs Officers, Internet and on market enquiries.
In the above background, the learned Counsel for the petitioner has submitted that if the valuation has been made by the authorities, which was
relied upon by the detaining authority, on the basis of the opinion of the Customs officers, Internet and on market enquiries, such documents are
material and should have been made available to the detenu in order to enable him to make an effective representation. It is therefore contended
that by not furnishing the relevant details even though specifically asked for by the detenu the right guaranteed under Article 22(5) is violated.
Learned Counsel appearing for the respondents has invited our attention to the report received from P.ORR & Sons Private Limited which
Indicates about the valuation of certain articles. Even assuming that the valuation relating to the articles which were seized from the detenu, it is to
be noticed that such report is dated 28.9.2006 and has been furnished with reference to letter issued by the Assistant Director of Revenue
Intelligence, Chennai dated 27.9.2006. whereas the Mahazar had been prepared on 23.9.2006. In other words, it is thus apparent that even
though in the mahazar there is a reference to the valuation on the basis of report from market enquiries no such report was available. Even
otherwise, assuming that the report relates to the information furnished from a reputed valuer the other two basis for arriving at valuation is not
explained.
In spite of repeated queries, the learned Additional Public Prosecutor is not in a position to produce the report of the Customs Officers
indicating about the valuation of all or any of the others and similarly there is no material to show about the valuation on the basis of the internet. It
can be assumed that the question of valuation of the articles is not relevant. As in the given case the detaining authority may not think of preventive
detention unless the valuation is very high. Since such detention is based on subjective satisfaction it is not possible for us to presume even if the
valuation would have been lost yet the detaining authority would have also passed an order of preventive detention. Since the detenu has
specifically in his representation asked for the basis of valuation atleast at this stage the detaining authority should have furnished the materials in
support of his conclusion. However, the representation was simply rejected that proper valuation had been made on the basis of report of the
Customs Officers, internet and information obtained from the market. As rightly contended it could be concluded that the detenu had been
deprived of an order of making effective representation as the basis of valuation had not been furnished in spite of request made by the detenu.
Since in the course of hearing in spite of repeated queries the learned Additional Public Prosecutor is not able to produce the relevant materials
such as report of the Customs Officers and the internet valuation, we are also constrained to come to the conclusion that such conclusion has been
arrived at by the detaining authority without any basis which would again mean that there is non application of mind by the detaining authority. In
this connection it is necessary to point out that similar question has been decided by this Court by order dated 9.3.2007 in H.C.P. No. 1118/06.
Moreover, it has been held in several decisions of this Court that when a representation is made the appropriate authority is requested to provide
serious attention to such representation and such representation should not be disposed of in a general manner. In the present case, the detenue has
specifically pointed about the basis of valuation and yet no such details were furnished and reply was given without application of mind. For the
reasons aforesaid, we are constrained to quash the order of detention notwithstanding seriousness of the allegations. In view of the above
conclusion, it is not necessary to deal with the other contentions raised by the counsel for the petitioner.
The Habeas Corpus Petition is allowed. Impugned order of detention is set aside. The detenu is directed to be set at liberty forthwith, unless he
is required in connection with any other case.