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2003 DIGILAW 426 (CAL)

CHAYA GHOSHAL v. UNION OF INDIA

2003-08-22

NURE ALAM CHOWDHURY, S.K.GUPTA

body2003
GUPTA, J. ( 1 ) BY filing the present application under Article 226 of the constitution of India, the petitioner has prayed for issuance of a writ or habeas Corpus for release of her husband by setting aside the order of detention bearing F. No. 673/54/2002-CUS/viii dated 20. 11. 2002 passed by Shri P. C. Jha, Joint Secretary to the Government of India, Ministry of finance, under Section 3 (1) of Conservation of Foreign Exchange and prevention of Smuggling Activities Act, 1974 (COFEPOSA ). ( 2 ) ). The facts which are relevant for the purpose of this application of habeas Corpus can be summarised as follows : shri Rajen Ghoshal is the husband of the petitioner. He is now at present detained in the Presidency Jail, Alipur, Kolkata in pursuance to the above mentioned order passed under COFEPOSA Act. On the basis of an information received on 8. 1. 2002 by the Special investigation Branch of Kolkata Customs, seven containers (7'x20')and one container (1'x40') were offloaded from the vessel M. V. Kpta bintang at Vishakapattnam Port for detail examination. The information, as received, was to the effect that a few Kolkata based exporters have exported on 5. 1. 2002 readymade garments, ball pens and side rubber wheels, grossly misdeclaring the quantity, description and value with a ulterior motive to avail undue draw back worth crores of rupees. It was alleged that M/s. Shyam Sundar Enterprises, of which the detenu is the proprietor, exported some of those containers. It is further alleged that M/s. Shyam Sundar Enterprises and one m/s. Vidur Impex were the owners of the remaining containers. The authority concerned, after opening the consignments found substantial shortages in quantity and also it appeard that the goods were highly over invoiced and even misdeclared in respect of the description of certain items. In fact there was gross difference in the actual quantity and quality of the garments and ball pens and side rubber wheels that were to be exported with that of those articles which were actually found in these containers at the Vishakapattnam Port. All these were done with the sole intention of getting huge amount of foreign currency. Pursuant to the seizure of the aforesaid export consignment, investigation was started by the Kolkata Customs Authorities and during investigation, one Shri Binoy Majumdar, a licensed clearing agent was interrogated on 18. 4. All these were done with the sole intention of getting huge amount of foreign currency. Pursuant to the seizure of the aforesaid export consignment, investigation was started by the Kolkata Customs Authorities and during investigation, one Shri Binoy Majumdar, a licensed clearing agent was interrogated on 18. 4. 2002 and his statement was recorded under Section 108 of the Customs Act. In his statement Shri Majumdar admitted that he knew Anil Kumar Mahensaria, Shri Rajen Ghoshal and others for the last seven months in connection with his business. He has further stated that Anil Kumar Mahensaria has got some business interest with the company as M/s. Shyam Sundar Enterprises and he was of the opinion that Shri Mahensaria, was actively involved in the activities of the said company. He has also stated that in respect of the matter of M/s. Shyam Sundar Enterprises, they usually communicated with Anil Kumar Mahensaria who used to discuss with him on many occasions regarding arrangements for exports by the said Company M/s. Shyam Sundar Enterprises. According to him, m/s. Shyam Sundar Enterprises and M/s. Vidur Impex have close links in between them and he knew that the detenu Rajen Ghoshal was an ordinary person and perhaps working only as an authorised signatory for M/s. Shyam Sundar Enterprises. ( 3 ) DURING investigation the residence of the detenu at 465, Chandal para Road, Jotirmoyee Nagar, Kolkata - 700 063 was searched and nothing incriminating was recovered. But after the search the detenu was arrested and he was taken to the Customs House where he was interrogated at length about his Complicity in the matter. His statement was recorded under section 108 of the Customs Act on 16. 7. 2002. In his statement, the detenu clearly stated that he was a person of limited means of poor back ground and he obtained an Importer Exporter Code No. (IEC) in the name of M/s. Shyam Sundar Enterprises. He has further stated that in order to earn his livelihood he used to lend his name and the Importer Exporter Code No. to interested parties who did not have IEC of their own. In the process he used to get commission of about 0. 5 per cent of the Invoice value. He has further stated that in order to earn his livelihood he used to lend his name and the Importer Exporter Code No. to interested parties who did not have IEC of their own. In the process he used to get commission of about 0. 5 per cent of the Invoice value. He has claimed that besides lending his IEC Code he had no knowledge about the goods which were supposed to be exported by the Company M/s. Shyam sundar Enterprises. He has further claimed that Anil Kumar Mahensaria alias "laddoo Babu" obtained some signed blank letter heads from him. He has categorically stated that Mahensaria is the actual exporter of the goods in question. He has also stated that being misguided by Mahensaria he had to sign on two writ petitions for filing in the High Court at Kolkata and the cost of such litigation was borne by Shri Mahensaria. On the next day of the recording of the statement of Shri Ghoshal, he was produced before the Chief Matropolitan Magistrate, Kolkata who from time to time remanded him to J/c. During his detention in the jail, his second statement was recorded by the Custom Officials wherein he also confirmed the statement as made by him earlier. Ultimately the' detenu Shri Rajen Ghoshal was released on bail on 11th September, 2002. But on the basis of the above mentioned allegations the respondents issued the order of detention under cofeposa on 20th November, 2002 against the detenu. Though the said order of detention was passed on 20. 11. 2002 no attempt was made to execute the said order of detention immediately. However, on 17. 12. 2002 police along with the Customs Officials came to his residential house and arrested the detenu. The detenu was taken to the Presidency Jail, Alipur where he was served with an order of detention under COFEPOSA. The documents which were relied upon, were served on the detenu on the same day in the Presidency Jail. In the order of detention, it was mentioned that the said order was passed with a view to preventing the detenu from smuggling goods in future. In the grounds of detention it was stated that the detenu had a right to make representation to the Detaining Authority, to the Central Government, as well as to the Advisory Board. In the order of detention, it was mentioned that the said order was passed with a view to preventing the detenu from smuggling goods in future. In the grounds of detention it was stated that the detenu had a right to make representation to the Detaining Authority, to the Central Government, as well as to the Advisory Board. Accordingly the detenu submitted representations to the Chairman COFEPOSA Advisory board on 22. 1. 2003, to the Central Government on 14. 2. 2003 and to the detaining Authority on 15. 2. 2003 praying for revocation of the order and for his release from the jail. On 19th February, 2003 the case of the detenu was heard by the members of the Advisory Board, New Delhi and it recommended the continued detention of the detenu in jail in pursuance of the order of detention based under COFEPOSA. According to the detenu his representation dated 14. 2. 2003 and 15. 2. 2003 which were submitted to the Central Government and to the Detaining Authority were also rejected by the said Authorities. ( 4 ) ACCORDING to the petitioner the detention order, as passed against the detenu in order to prevent him from smuggling goods in future, was based on non-application of mind on the part of the Detaining Authority. ( 5 ) SECONDLY, the order of detention has been challenged on the ground of undue and unreasonable delay in passing the order of detention. The investigation procedure in this respect was started on 24. 1. 2002 and the detention order was passed on 20. 11. 2002. In between such a long gap of time, there was no fresh materials before the authority that the detenu being a free person since his release on bail on 11. 9. 2002, continued to indulge in prejudicial activities of smuggling. There is no explanation for this on the part of the respondent and as such the petitioner has claimed that the order of detention, passed by the authority concerned, is bad in the eye of law. ( 6 ) THIRDLY, the petitioner has claimed that although the detention order was passed on 20. 11. 2002, no attempt of whatsoever nature, was made to serve the same on the detenu although he was present at Kolkata and was available at his residence. The concerned authority preferred to wait to till 17. 12. 2002 to execute the order of detention. 11. 2002, no attempt of whatsoever nature, was made to serve the same on the detenu although he was present at Kolkata and was available at his residence. The concerned authority preferred to wait to till 17. 12. 2002 to execute the order of detention. This shows that the authority concerned was not at all serious regarding the detention of the detenu and on this ground also the said order of detention is liable to be set aside as objects sought to be achieved by passing the order of detention against the detenu was rendered illusory by keeping the said order in abeyance and making no attempt to execute the same on the detenu. ( 7 ) FOURTHLY, the petitioner has further claimed that the detention order was passed on the basis of one solitary incident of seizure of export of goods at Vishakapattnam Port on 24. 1. 2002. It has been claimed that there was nothing on record to show that the detenu was involved in any such incident in the past. The incident of 24. 1. 2002 does not demonstrate a potentiality for continuing criminality, or capability to continu such acts in future. The Authority concerned failed to take this into consideration while passing the detention order and as such the said order is liable to be quashed. ( 8 ) FIFTHLY, the petitioner has claimed that from the statements of various persons, as recorded by the Customs Authority, clearly show that in fact the detenu was not responsible for the alleged fraud in exporting the goods and he was merely a name lender of his IEC. One Shri Mahensaria was the principal accused and he is the king-pin of the entire episode in order to acquire huge draw back amount by cheating the Government of India. It is clear from the statements that the detenu had no vital role to play excepting lending his IEC Code and as such the petitioner has claimed that the authority Concerned failed to appreciate the materials available to it in coming to a decision in respect of the passing of the detention order so far as the detenu is concerned and as such according to the petitioner as the authority failed to apply its mind properly, so the detention order is liable to be quashed on that ground too. ( 9 ) SIXTHLY, the petitioner has further claimed that the Detaining authority while passing the order of detention, took into consideration irrelevant materials like the writ applications. It is now settled that while passing the detention order, the Authority is only to consider the facts which are relevant for the purpose of the hearing. In coming to the subjective satisfaction of the Detaining Authority for passing the order of detention if the Authority relies upon irrelevant documents, then the said order of detention of the Detaining Authority is liable to be quashed. ( 10 ) SEVENTHLY, the petitioner claims that the Sponsoring Authority did not produce the relevant materials before the Detaining Authority and as the Sponsoring Authority with held relevant materials so it should be considered to be a serious lapse on the part of the Sponsoring Authority and as such the consequent Detention Order based on the available documents, should be declared unlawful and illegal. According to the petitioner, during investigation the Officers of the Customs Department seized several documents and recorded statements of several persons. But all those relevant papers were not placed before the Detaining Authority. In fact, the Sponsoring Authority withheld some of the most relevant materials, production of which were bound to influence the mind of the detaining Authority. Non-placement of those vital and relevant documents, according to the petitioner, has vitiated the entire detention proceeding. ( 11 ) LASTLY, the petitioner has claimed that the detenu submitted representations to the Chairman, COFEPOSA Advisory Board on 22. 1. 2003 and to the Central Government on 14. 2. 2003 and to the Detaining Authority on 15. 2. 2003. But the representation submitted by the detenu to the Central government was not properly considered in its proper perspective. The said representation, instead of being considered by the Central Government, was actually considered by the Detaining Authority in terms of the order dated 25. 2. 2003. After it was so considered, it was placed before the secretary, Government of India, Ministry of Finance, Department of revenue, CEIB, New Delhi. The Secretary finding that the said representation had already been rejected by the Detaining Authority, mechanically rejected the same on 28. 2. 2003. 2. 2003. After it was so considered, it was placed before the secretary, Government of India, Ministry of Finance, Department of revenue, CEIB, New Delhi. The Secretary finding that the said representation had already been rejected by the Detaining Authority, mechanically rejected the same on 28. 2. 2003. As such, the petitioner has claimed that the representation made by the detenu under Section 11 of the COFEPOSA Act to the Central Government was not independently considered by the Central Government and as such the continued detention of the detenu must be held to be illegal. It has further been alleged that the representation of the detenu was not considered expeditiously as enjoined by law and on that ground also it is liable to be quashed. ( 12 ) THE allegations of the petitioner has been denied by the respondent No. 1 by filing affidavit-in-opposition. Said affidavit-in-opposition was filed by one Bijoy Kumar Tiru, an Assistant Commissioner of Customs posted in the Office of the Commissioner of Customs, Customs House, kolkata. In the said affidavit, the respondent has denied that there was total non-application of mind in passing the order of detention by the detaining Authority, as claimed by the petitioner. He has also denied that there was delay in passing the Detention Order as well as for executing the said Detention Order against the detenu. He has further denied that all the relevant documents were not considered at the time of passing of the detention Order by the Detaining Authority. He has further denied the claim of the petitioner that the representations submitted by the detenu against the order of detention, were not considered properly, an enjoined by law. He has prayed for dismissal of the writ petition. ( 13 ) IT is the admitted position that by passing the Detention Order, the concerned Authority directed the detention of the detenu for one year under the COFEPOSA Act. It is also the admitted position that over the alleged incident a criminal case was already started against the detenu and he has been released on bail in that criminal proceeding. There is no doubt that the detention under the COFEPOSA Act is an exception to the established principle of criminal Justice as prevalent in our country. In the said Act provision has been made for detention of a person by the Detaining authority without any trial. There is no doubt that the detention under the COFEPOSA Act is an exception to the established principle of criminal Justice as prevalent in our country. In the said Act provision has been made for detention of a person by the Detaining authority without any trial. This is clearly an exception to the established principle of criminal Justice of a democratic country like India. But the said exception in passing the COFEPOSA Act has been recognised by the Courts in our country and it has been decided by the Hon'ble Supreme Court and by the High Courts that the authority concerned is at liberty to resort to such an exceptional procedure whenever it appears necessary for the said detaining Authority to pass such an order In order to safeguard the economic security of our country. But in various decisions our Courts had clearly laid down the rule that in order to pass a Detention Order under the COFEPOSA act, the authority concern should take utmost care in passing the order so that there should not be slightest denial of natural Justice to the detenu. In other words, it has been held in different decisions that the order of detention under COFEPOSA Act should be passed by the Authority without any delay whatsoever and the concerned Authority must be satisfied that there was genuine necessity for passing such an order of detention in the interest of the economic security of the country. Provisions have been made in the act itself to that effect and also the Act has given opportunity to the detenu for submitting representations to the proper authority. It has been laid down under Section 11 of the COFEPOSA Act that those representations, as may be filed by a detenu should be disposed of by the Authority independently and contemporaneously and without any delay whatsoever. Let us now consider the present case in the light of the discussion made above in order to see whether there was any justification on the part of the detaining Authority to pass the Detention Order against the detenu and whether all the norms, as laid down by different decisions, have been followed while passing that order. Learned Advocate for the petitioner cited various decisions in order to show that there was unnecessary delay in passing the order of detention. Learned Advocate for the petitioner cited various decisions in order to show that there was unnecessary delay in passing the order of detention. On that point he has cited the decisions reported in J. T. 1989 (4) SC page 557, Anand Prakash v. State of U. P. and ors. , 1995 C. Cr. L. R. (Cal) page 80, Smt. Manju Jalan v. Union of India and Ors. , 1989 (4) SCC page 741, T. A. Abdul Rahaman v. State of Kerala and Ors. In all those decisions it has been decided that there should not be any unnecessary delay in passing the detention order under the Act. If we look into the writ petition, then it will appear that on 4. 7. 2002 the proposal for detention was sent to the Ministry and statement of the detenu was recorded on 16. 7. 2002. On the next day he was produced before the Chief metropolitan Magistrate, Kolkata and he was remanded to J/c from time to time. The respondent has claimed that the proposal for detention was considered by the Central Screening Committee on 18. 9. 2002 and ultimately the order of detention was issued on 20. 11. 2002. It appears from the record that the proceeding regarding the detention under COFEPOSA Act was actually started on 8. 1. 2002 when the information regarding the fraudulent exports was first received. From that day till 4. 7. 2002 the matter was kept under the investigation stage and various steps were taken by the concerned department in recording the statement of different persons as well as in seizing several articles and documents which were relevant for the purpose of this case. That apart, it appears that writ petitions were filed in the Kolkata high Court challenging the steps taken by the Customs Authority in seizing the goods in question at the Vishakapattnam Port. The documents show that in fact initially there was a restrain order against the Customs Authority in respect of the goods in question. Due to these things, it appears that probably the investigation into the matter could not be completed during those seven months. So the delay, as took place during this period cannot be said to be intentional on the part of the authority and to our mind said delay has been reasonably explained by the respondent. Due to these things, it appears that probably the investigation into the matter could not be completed during those seven months. So the delay, as took place during this period cannot be said to be intentional on the part of the authority and to our mind said delay has been reasonably explained by the respondent. We are of opinion, that due to this delay it cannot be said that the order of detention is liable to be quashed. But it appears that on 4. 7. 2002 the proposal for detention of the detenu under COFEPOSA Act was sent to the Ministry and the concerned authority took time up to 20. 11. 2002 for passing the Detention order. There was practically no proper explanation on behalf of the respondent for this delay. The learned Advocate for the respondent drew our attention to the fact that some time was consumed in observing the official formalities. But that cannot be a good ground of defence for the respondent, particularly when a person's liberty is at stake. We find no reason for the Authority concerned in taking such a long time in discussing the matter with the conversent Officer and also for collecting the copy of the orders, as passed by the learned Chief Metropolitan Magistrate. In the affidavit-in-opposition there is practically no proper denial in respect of the allegation of the petitioner that there was undue delay in considering the proposal for detention under the Act. As such, under the circumstances, we are of opinion that there was unreasonable delay in passing the Detention order. Against the detenu and that delay has not been properly explained and as such we are of opinion that on that ground the detention order as passed under COFEPOSA Act is liable to be quashed. ( 14 ) THE petitioner has also challenged the detention order on the ground that there was unreasonable delay in executing the said order of detention and as such the order in question should be held to be illegal. The learned Advocate for the petitioner while arguing on this point cited decisions reported in 1989 (4) SCC page 741, T. A. Abdul Rahaman v. State of Kerala and Ors. , 1992 (2) SCC page 295, K. P. M. Basheer v. State of karnataka and Anr. The learned Advocate for the petitioner while arguing on this point cited decisions reported in 1989 (4) SCC page 741, T. A. Abdul Rahaman v. State of Kerala and Ors. , 1992 (2) SCC page 295, K. P. M. Basheer v. State of karnataka and Anr. , 2002 (2) SCC page 360, A. Mohamad Farook v. Joint secretary, Government of India and 1998 (8) SCC page 343, Sultan Abdul kader v. Secretary, Government of India and Ors. By citing all those decisions Mr. Farook, the learned Advocate for the petitioner submitted that although the detention order was issued on 20. 11. 2002, it was executed only on 17. 12. 2002 i. e. almost one month after the order of detention was issued. According to him, at that time the detenu was released on bail and he was all among present in his residential house situated at Kolkata. In para 15 of page 19 of the writ petition, the petitioner has clearly claimed that the detenu during that period was all along present in his house and there was no attempt on the part of either the Customs Authority or by the police Authority to execute the said order of detention till 17. 12. 2002. In reply to the said contention the respondent in Paragraph-13 of page 11 of ' the affidavit-in opposition has simply denied the said claim of the petitioner. According to the respondent, the detenu was not traceable and available in his residence during that period and the Customs Officials were in constant look out for the said detenu during that period. It has been denied by the respondent that there was no attempt to execute the detention order promptly by the Detaining Authority. In support of this contention Mr. Shibdas banerjee, learned Advocate for the respondent argued that it is the normal procedure that the detention order is to be executed by the Police Authority and inspite of their best efforts, the Police Authority could not execute the same by detaining the detenu. But in support of this contention, nothing has been produced before this Court in order to establish that attempts were made to apprehend the detenu immediately after the detention order was passed. But in support of this contention, nothing has been produced before this Court in order to establish that attempts were made to apprehend the detenu immediately after the detention order was passed. Simply on the basis of the statement made by the learned advocate for the respondent, it cannot be said that the authority was serious in executing the order of detention against the detenu. We must not forget that there is allegation of smuggling of serious nature against the detenu and it is the case of the respondent that the detenu was a threat to the economy of the country and his freedom for a single day would jeopardize the health of the country's economy. As such, it is expected that for such a person the Authorities would be absolutely serious in apprehending him and to detain him as per the detention order as soon as the same was passed. In absence of any substantive material to show that there is no intentional delay in apprehending the detenu, it is not believable that the authority was serious in detaining the detenu as per the COFEPOSA Act. The delay is executing the order of detention also suggest that the subjective satisfaction of the Detaining Authority was not bona fide. As such, we are of opinion that on this ground also the detention order, as passed against the detenu, is liable to be quashed. ( 15 ) MR. Farook, learned Advocate for the petitioner, further argued that while passing the detention order, the Detaining Authority considered some documents viz. writ petitions filed by the detenu, which are not at all relevant for the purpose of the detention proceeding. As such, he claimed that the detention order is liable to be quashed as the Detention Authority did not consider the relevant documents. In support of his contention he cited decision reported in 2002 (3) SCC page 451, V. C. Motion v. Union of india and Ors. But it appears from the record that all the documents were placed before the Detaining Authority by the Sponsoring Authority at the time of the consideration of the detention order. Whether the writ petitions are relevant or not, that is for the Detaining Authority to consider and as because those documents have been considered, it cannot be said that the detaining Authority was not justified in looking into those documents. Whether the writ petitions are relevant or not, that is for the Detaining Authority to consider and as because those documents have been considered, it cannot be said that the detaining Authority was not justified in looking into those documents. It is the subjective satisfaction which is important for the Detaining Authority for passing the detention order. The Court can only look into the propriety of that subjective satisfaction of the Detaining Authority and not to the materials which were considered by the Detaining Authority in ariving at a decision. In our considered opinion, it appears that almost of the relevant documents were placed before the Detaining Authority for consideration and as such we are unable to accept this contention of Mr. Farook and so the same is rejected. ( 16 ) IT is the claim of the petitioner that the detenu was involved in the incident in question and that was the solitary instance of his life. The petitioner has claimed that beside this solitary incident there was no other similar incident in which the detenu was involved earlier. As such, the learned advocate for the petitioner submits that for this solitary incident, it was not proper on the part of the respondent to take unconventional step in detaining the detenu as per provisions of the COFEPOSA Act. In this respect, he relied on decision reported in 2002 (3) SCC page 754, Shri Raghunandan v. Tamilnadu and Ors. We have already pointed out that over the incident a criminal proceeding has already been started against the detenu and he has been released on bail in the said proceeding. It is well settled that a criminal proceeding and preventive detention are not parallel proceedings. The object of a criminal prosecution is to punish a person for an offence committed by him, while preventive detention is an anticipatory measure and may not relate to an offence. The order of preventive detention can be made even after a criminal proceeding is withdrawn for want of sufficient evidence. It is for the Detaining Authority to determine in his subjective satisfaction, whether even in such a case, there are sufficient materials to place the person under preventive detention in order to prevent him from acting in a manner prejudicial to the public order or like in future. It is for the Detaining Authority to determine in his subjective satisfaction, whether even in such a case, there are sufficient materials to place the person under preventive detention in order to prevent him from acting in a manner prejudicial to the public order or like in future. The merit of the criminal case, as started against the detenu, in connection with the present incident, cannot be considered here in this proceeding. It is to be considered by the Criminal Court and if proved, the detenu would be punished. Here in this matter, we are to see whether it will be against the interest of the country's economy that the petitioner should not be released and consequently he should be detained in order to prevent him for taking any step for smuggling of goods in future. We have already pointed out that there is nothing on record to show that the detenu was involved in similar activities in the past. On the contrary, if we look into the statement of one binoy Mazumdar on which the Detaining Authority relied heavily, then it will appear that he has categorically stated that the detenu was not involved in any such activity in the past and practically he was the name lender to the actual offender Anil Kumar Mahensaria. The said statement also shows that in fact the detenu allowed his IEC Code to be used by the Mr. Mahensaria with the intention to get small percentage of commission. Undoubtedly this Act on the part of the detenu was illegal in the eye of law. But for that reason the ordinary Criminal Law is sufficient for punishing the detenu. In addition to that, the Authority concerned could take proper legal step for cancellation of the IEC Code of the detenu in order to prevent him from pursuing such activities in future. But no such step has been taken by the Authority concerned for reasons best known to them. In addition to that, the Authority concerned could take proper legal step for cancellation of the IEC Code of the detenu in order to prevent him from pursuing such activities in future. But no such step has been taken by the Authority concerned for reasons best known to them. For the alleged illegal Act on the part of the detenu a criminal case has already been started and if it is proved then there is clear provision in the ordinary law for awarding adequate punishment to the detenu and if in addition to that appropriate steps are taken by the Authority for cancelling the IEC Code of the detenue, then in that event there cannot be any doubt that the alleged smuggling activities of the detenu in future could be prevented. For that there would be no necessity or restoring to invoke the provisions of the COFEPOSA act which is admittedly a special statute to be used very sparingly and under compelling circumstances. That apart, it appears that the Detenu was released on bail about three months prior to the execution of the detention order. There is nothing on record to show that during this period also he was involved in smuggling activities warr. anting his detention under the COFEPOSA Act. It appears that the Detaining Authority did not consider all these things in coming to the conclusion that the release of the detenu would be prejudicial to the economic interest of the country. To our mind, the Detaining Authority did not apply its mind properly while passing the detention order against the detenu under the COFEPOSA Act and as such on this ground also we are of opinion that the said detention order is liable to be quashed. ( 17 ) MR. Farook, learned Advocate for the petitioner further submits that as per Section 11 of the COFEPOSA Act, the detenu submitted representations to the Central Government, to the Detaining Authority and as well as the Advisory Board. The learned Advocate argued that the representations submitted by the detenu were not considered expeditiously without any avoidable delay. He also argued that all the Authorities are required to consider those representations independently without being influenced by the decision of the other Authority. For this he relied on the decisions reported in 1987 (4) SCC page 58, Mahinuddin v. District magistrate Bead and Ors. He also argued that all the Authorities are required to consider those representations independently without being influenced by the decision of the other Authority. For this he relied on the decisions reported in 1987 (4) SCC page 58, Mahinuddin v. District magistrate Bead and Ors. , 1998 (8) SCC page 473, Ahamed Nassar v. State of Tamilnadu and Ors. It appears from the writ petition at page 41 that it has been alleged by the petitioner that the representation of the detenu was first rejected Detaining Authority on 25. 2. 2003 and thereafter same was placed before the Secretary, Finance Department, Government of India who rejected the same on 28. 2. 2003. As such, the learned Advocate for the petitioner submits that there was no proper consideration of the representation by the Central Government and the Secretary, Finance department rejected the said representation mechanically. He also argued that the representations were also not considered expeditiously, as enjoined by law. It appears from the affidavit-in-opposition filed by the respondent that there is practically no denial on these allegations as made by the petitioner. As such, the claim that the representation made by the detenu to the Central Government was not independently considered remained uncontroverted. In absence of any material whatsoever on behalf of the respondent in this respect, we have got no other alternative but to hold that the respondent had failed to prove that the representations as submitted by the detenu were considered properly and as per law. We have already pointed out that it is the duty of the Authority to dispose of the representations as expeditiously as possible. It appears that the representations were submitted on 14. 2. 2003 and 15. 2. 2003 and those were disposed of on 25. 2. 2003 and 28. 2. 2003 respectively. There is practically no explanation as to why there was delay of about 12/13 days in disposing of those representations. The law relating to the consideration of the representation submitted by detenu against on order of detention, in now well settled. It has been repeatedly held by the Hon'ble Supreme Court that whatever may be the delay in disposing of a representation, the Authority concerned must explain to the Court such delay indicating that the representation of the detenu has been expeditiously disposed of. It has been repeatedly held by the Hon'ble Supreme Court that whatever may be the delay in disposing of a representation, the Authority concerned must explain to the Court such delay indicating that the representation of the detenu has been expeditiously disposed of. The law further requires that the representation made by the detenu either to the Detaining Authority or to the Central Government or to the Advisory Board must be considered independently and contemporaneously. We have already pointed out that the petitioner has claimed that the Authority concerned did not follow the said established procedure. In fact, if we look into the affidavit-in-opposition filed on behalf of the respondent, then it will appear that there is practically no denial in respect of the allegations made by the petitioner in this respect. Said affidavit-in-opposition was not filed by the Joint Secretary, Finance department, Government of India who is the Respondent No. 2 in this petition and who has passed the detention order. Not it has been filed by anybody who is conversent with the facts which were taken into consideration by the Respondent No. 2 at the time of passing of the detention order. Instead, the respondent preferred to file the affidavit-in-opposition by one Assistant Commissioner of Customs posted in the Kolkata Office. There is no dispute that the Koikata Office of the Customs Department was the Sponsoring Authority for indicating the detention proceding against the detenu. The Assistant Commissioner, Kolkata Customs is vitally interested in the matter and cannot be said to be an independent person. Moreover, it is not possible for him to enlighten the Court regarding the details of the proceeding which was under taken by the Detaining Authority, who is the joint Secretary, Finance Department, Government of India, in passing the detention order. The said Assistant Commissioner, Kolkata Customs, in our opinion is not at all competent to file this affidavit on behalf of the respondent No. 2 i. e. the Detaining Authority. Also there is no proper denial by a competent person regarding the allegations as made in the petition. So it must be said that these allegations have remained unrebutted. In the present case specific allegations have been made that the Detaining authority passed the detention order without application of mind and it was not a bona fide order. Also there is no proper denial by a competent person regarding the allegations as made in the petition. So it must be said that these allegations have remained unrebutted. In the present case specific allegations have been made that the Detaining authority passed the detention order without application of mind and it was not a bona fide order. In view of such type of allegations, we are of opinion that it was the duty of the Detaining Authority to affirm the counter affidavit himself or by his authorised representative who is well acquainted with the fact. Those allegations cannot be denied by an Officer who is admittedly working in the Office of the Sponsoring Authority. Under such circumstances, we are constrained to hold that the allegations made by the petitioner in the writ application remained uncontroverted. As such, we find force in the argument of Mr. Farook, the learned Advocate for the petitioner that the detention order is liable to be quashed. Therefore, from our discussion made above, we are of opinion that the petitioner has been able to prove that the detention order, as passed against the detenu by the Detaining Authority, suffers from various illegalities and the same should be quashed and the detenu should be released immediately. We, therefore, set aside the order of detention and direct the respondents to release the detenu immediately unless he is required in any other case. There will be no order for cost.