Bombay High Court
Sangita Bala Jadhav vs The State Of Maharashtra on 8 November, 2011
Bench: A.M. Khanwilkar, P. D. Kode
1 233211
vgm
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 2332 OF 2011
Sangita Bala Jadhav ]
Age 36 years, an Indian inhabitant, ]
Residing at A/202, Shiv Shristhi Building, ]
Plot No. 3, Section 7, New Panvel, ]
Navi Mumbai ] ...Petitioner
(Wife of Detenu)
V/s.
1. The State of Maharashtra ]
through the Secretary to the Government ]
of Maharashtra, Home Department (Special), ]
Mantralaya, Mumbai 400 032 ]
2. Medha Gadgil, ]
the Principal Secretary (Appeals and Security) to ]
the Government of Maharashtra, ]
Home Department and Detaining Authority, ]
Mantralaya, Mumbai 400 032 ]
3. Senior Police Inspector, ]
P.C.B., C.I.D., Shivaji Market, Mumbai. ]
4. The Superintendent of Prison, ]
Nashik Road Central Prison, Nashik Road, ]
Nashik ]
5. The Customs Officers of JNPT, ]
Nhava Sheva, Uran, Dist. Raigad. ] ...Respondents
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WITH
CRIMINAL WRIT PETITION NO. 2333 OF 2011
Vikram Vithal Borhade ]
Age 30 years, an Indian Inhabitant, Residing at ]
402, A Wing, Shridha Co-op. Hsg. Society, ]
Kala Chowki, Lal Baug, Mumbai-33. ] ...Petitioner
V/s.
1. The State of Maharashtra ]
through the Secretary to the Government of ]
Maharashtra, Home Department (Special),
ig ]
Mantralaya, Mumbai 400 032 ]
2. Medha Gadgil, ]
the Principal Secretary (Appeals and Security) ]
to the Government of Maharashtra, ]
Home Department and Detaining Authority, ]
Mantralaya, Mumbai 400 032 ]
3. Senior Police Inspector, ]
P.C.B., C.I.D., Shivaji Market, Mumbai ]
4. The Superintendent of Prison, ]
Nashik Road Central Prison, Nashik Road, ]
Nashik ]
5. The Customs Officers of JNPT, ]
Nhava Sheva, Uran, Dist. Raigad. ] ...Respondents
AND
CRIMINAL WRIT PETITION NO. 2683 OF 2011
Vimal Ashok Dhakne ]
Age 45 years, an Indian inhabitant, residing ]
at 401, Runwal Residency, 4th Floor, ]
Avenue Road, Post Office Park, Chembur (East), ]
Mumbai 400 071 ] ...Petitioner
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V/s.
The State of Maharashtra ]
through the Secretary to the Government of ]
Maharashtra, Home Department (Special), ]
Mantralaya, Mumbai 400 032 ]
2. Medha Gadgil, ]
the Principal Secretary (Appeals and Security) to ]
the Government of Maharashtra, ]
Home Department and Detaining Authority, ]
Mantralaya, Mumbai 400 032 ]
3. The Superintendent of Prison,
ig ]
Nashik Road Central Prison, Nashik Road, ]
Nashik ]
4. The Customs Officers of JNPT, ]
Nhava Sheva, Uran, Dist. Raigad. ] ...Respondents
Mrs. Aisha Zubair Ansari with Ms. Nasreen Ayubi for the Petitioners
Mr. J.P. Yagnik, A.P.P., for the State
CORAM: A.M. KHANWILKAR AND
P.D. KODE, JJ
DATE: NOVEMBER 08, 2011.
JUDGMENT (PER A.M. KHANWILKAR, J.):-
By this common judgment, we intend to finally dispose of
all three petitions challenging the Orders of Detention together, as the
background in which the respective Detention Orders were issued
against the concerned detenues is common and arising out of the same
4 233211
transaction and more so, the issues raised are overlapping. In other
words, the facts and events as disclosed in the respective petitions as
also the reply-affidavits and the original record of the respondents, i.e.,
the Sponsoring Authority and the Detaining Authority are broadly
identical.
2. The first petition is filed by the wife of Bala Baburao
Jadhav (hereinafter referred to as Detenu Jadhav), challenging the
Order of Detention dated 20th July, 2011 bearing No.
PSA-1211/CR-17(4)/SPL-3(A) issued by the Detaining Authority in
exercise of powers under Section 3(1) of the Conservation of of
Foreign Exchange and Prevention of Smuggling Activities Act, 1974
(hereinafter referred to as "the said Act"), upon recording satisfaction
that it was essential to detain the detenu with a view to prevent him in
future from smuggling of goods and abetting smuggling of goods and
engaging in transporting and concealing and keeping smuggled goods
and harbouring persons engaged in smugging of goods and abetting
smuggling of goods. From the Grounds of Detention served on the
said detenu, it is noticed that the said action was initiated against the
said detenu, as he was involved along with four others in the case of
gross misdeclaration with respect to quantity, quality and valuation of
5 233211
the declared export goods, besides claim of disproportionately higher
amount of drawback. The Grounds of Detention refer to the statements
of the accused recorded under Section 108 of the Customs Act, 1962,
including the admission of the detenu that he had filed the wrong
declaration on the shipping bills and had not obtained the permission of
proper officer for making amendments. Further, the co-accused,
Sanjay Waghmare, in his statement, admitted that he had removed the
export goods from the warehouse through his associate for export. It
also refers to the sealed samples (28 in number) of the goods covered
under the eight shipping bills drawn under panchanama, which were
forwarded to the Textile Laboratory and Research Centre, Mumbai, for
testing the composition and criteria of the said items; as also to
Government-approved valuer for valuation. The goods totally valued at
Rs.3,67,98,880 (F.O.B.) with drawback claim of Rs.34,20,030/-. As
per the valuation report, the value was determined at Rs.10/- per piece
of Dupatta and Rs.20/- per piece of Sarong as compared to the declared
value of Rs. 351.34 and Rs. 280.78 of the respective items, which were
considerably very low. Detenu Jadhav was involved in the said offence
as an employee of Clearing House Agency firm of M/s. Dhakne & Co.
The Grounds of Detention state that Detenu Jadhav abetted in
smuggling activities by improper export and claiming drawback
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fraudulently by offering Clearing House Agency services to the
exporters. He prepared and signed the shipping bills and related
documents for exports of M/s. Noble Impex and completed custom
dock formalities without scrutinising the export documents. He
submitted blank annexure / declaration to generate the checklist. There
was difference in signature on the invoices and alterations, i.e., gross
weight, net weight, description of the goods, quantity of the goods,
market value and different dates on the declaration. He submitted
overwritten / correct customs cleared documents at EDI Centre,
Kalamboli, without proper permission of the Customs. In his statement
under Section 108 of the Customs Act, he admitted misdeclaration in
description, quantity, quality, valuation of the export goods and
claiming drawback fraudulently by the exporter. In the Grounds of
Detention, it is stated that Detenu Jadhav has the propensity to commit
similar offences in future and knowingly was not disclosing the
identities of the persons involved in smuggling. Further, considering
the nature and gravity of the offence and the well-organised manner in
which the prejudicial activities were being carried out, the Detaining
Authority recorded her satisfaction that it was imperative to detain
Detenu Jadhav with a view to prevent him from indulging in smuggling
7 233211
activities in future as his smuggling activities were covered by Section
113(d) and (h) (ii) of the Customs Act, 1962.
3. The second petition is filed by the cousin brother of one
Sanjay Nivrutti Waghmare (hereinafter referred to as "Detenu
Waghmare") to challenge the Detention Order dated 20th July, 2011
bearing No. PSA-1211/CR-17(5)/SPL-3(A) issued by the Detaining
Authority in exercise of powers under Section 3(1) of the said Act,
upon being satisfied that detention of Detenu Waghmare was essential
to prevent him in future from smuggling of goods and abetting
smuggling and engaging in transporting and concealing and keeping
smuggled goods and harbouring persons engaged in smugging of goods
and abetting smuggling of goods. As aforesaid, the Detention Order
against Detenu Waghmare has been passed in connection with the
same transaction referred to in the Grounds of Detention of Detenu
Jadhav regarding smuggling of goods of gross misdeclaration with
respect to quality, quantity and valuation of the declared export goods
and claim of disproportionately higher amount of drawback regarding
the export consignment of M/s. Noble Impex under eight shipping bills.
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4. In the Grounds of Detention served on Detenu Waghmare,
it is stated that he was part of a larger conspiracy and entered into
conspiracy to earn money by improper export and claiming drawback
fraudulently. He went to Surat to solicit probable exporter and
discussed the export strategy with exporter. He fixed Rs.10,000/- per
container as his charges and helped the exporter to get I.E.C. Code. He
also arranged transport for the export of goods from Surat to Mumbai,
kept the goods at warehouse at Mumbai, removed and transported
export goods to shed. He introduced the exporter to Clearing House
Agent M/s. Dhakne & Co. and booked the container for the export
goods from M/s. Freight Services, Mumbai. It is further stated that
Detenu Waghmare removed export goods from warehouse through his
associate, arranged transport and transported the export goods to shed,
thereby aided and abetted improper export for claiming higher
drawback fraudulently in violation of the provisions of Section 113(d)
and (h) (ii) of the Customs Act. It is stated that Detenu Waghmare,
along with four other co-accused, were actively involved in the
attempted improper export and claimed higher disproportionate amount
of drawbacks fraudulently, thereby indulging and abetting in smuggling
activities. He has the propensity to commit such offences in future and
knowingly was not disclosing the identities of the persons involved in
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the smuggling, as they are actively involved in the aforesaid illegal
activities. It is stated that, considering the nature and gravity of the
offence and the well-organised manner in which Detenu Waghmare
had engaged in prejudicial activities, it was imperative to detain him
with a view to prevent him from indulging in smuggling activities in
future.
5.
The third petition is filed by the wife of one Ashok
Pandurang Dhakne (hereinafter referred to as "Detenu Dhakne"),
challenging the Detention Order dated 20th July, 2011 bearing No.
PSA-1211/CR-17(3)/SPL-3(A) issued by the Detaining Authority in
exercise of powers under Section 3(1) of the said Act, directing
detention of Detenu Dhakne to prevent him in future from smuggling
of goods, abetting smuggling of goods and engaging in transporting,
concealing, keeping smuggled goods and harbouring persons engaged
in smugging of goods and abetting smuggling of goods.
6. Even in the third petition, the impugned Detention Order
is founded on the same transaction pertaining to export consignment of
M/s. Noble Impex under eight shipping bills which came under scanner
because of gross misdeclaration with respect to quantity, quality and
valuation of the declared export goods and claim of disproportionately
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higher amount of drawback. After referring to the relevant admission
given by the co-accused, it is noticed that Detenu Dhakne was partner
of the concerned Clearing House Agency, i.e., M/s. Dhakne & Co. The
Grounds of Detention stated that Detenu Dhakne abetted the improper
exports and claiming drawback fraudulently by offering his C.H.A.
services to the exporters. He was shown the sample of export goods.
He instructed his staff to prepare the shipping bills and related
documents for exports. He had given instructions to Detenu Jadhav to
prepare, file the shipping bills and complete Customs dock formalities.
He confirmed the name of Bala Jadhav on shipping bills of M/s. Noble
Impex on behalf of C.H.A. Firm, M/s. Dhakne & Co. He admitted to
have offered his C.H.A. service without verifying quality and quantity
of the samples of the items to be exported. He has also admitted
having given the blank annexure/declaration to his employee, Detenu
Jadhav. Detenu Dhakne also confirmed the different signatures on the
invoices and admitted misdeclaration in description, quantity, quality,
valuation of the export goods and claiming drawback fraudulently by
the exporter. The Detaining Authority, in the Grounds of Detention,
has noted that the four accused were actively involved in the attempted
improper export and claiming higher disproportionate amount of
drawback, thereby indulging and abetting in smuggling activities.
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They all have the propensity to commit prejudicial activities in future
and knowingly not disclosing the identities of the persons involved in
smuggling, as they were actively involved in the stated illegal
activities. It is noted that the acts of commission and omission of the
detenu contravened the provision of Section 113(d) and (h)(ii) of the
Customs Act. Further, considering the nature and gravity of the
offence and the well-organised manner in which Detenu Dhakne had
engaged in prejudicial activities, it was imperative to detain him under
the said Act with a view to prevent him from indulging in smuggling
activities in future.
7. In the respective petitions, although diverse grounds have
been taken, at the time of hearing of the petitions the counsel for the
petitioners, in all fairness stated that most of the contentions were
common to all the three petitions. We shall at the appropriate stage
indicate the additional contention taken in respect of the two connected
petitions of Detenues Waghmare and Dhakne, specific to those cases.
8. The first set of common grounds urged in all the three petitions
can be summarised as follows:-
Firstly, that there has been delay in initiating the proposal
for detention of the respective detenues; secondly, that the Detention
Orders could not have been issued in the fact situation of the case as
12 233211
the detenues had not indulged in similar prejudicial activities after
being released on bail in connection with the transaction in question;
and, thirdly, that the Detaining Authority has failed to consider whether
any other measure was possible, instead of issuing Orders of Detention.
However, at the time of hearing, the learned counsel fairly submitted
that she may not pursue the above noted grounds in view of the recent
decision rendered by us in the case of Shamsher Singh S/o. Balwinder
Singh v. the State of Maharashtra & Ors., Criminal Writ Petition No.
2188 of 2011 decided on 11th October, 2011. Incidentally, in that case
also, the counsel for the petitioners herein had appeared for the detenu
and unsuccessfully pursued these very grounds. She fairly accepts that
the principle enunciated in the said decision in relation to the abovesaid
grounds would squarely apply and it may not be possible for her to
distinguish the same.
9. That leaves us with the other three broad common points urged
by the learned counsel for the petitioners. According to the petitioners,
the impugned Detention Orders suffer from the vice of non-application
of mind. In that, the Detaining Authority, after receipt of the proposal,
proceeded to pass order within one day. The argument proceeds that it
was impossible for the Detaining Authority to wade through all the four
proposals examined together in one day and also formulate grounds
13 233211
therefor. The second shade of challenge to the impugned Detention
Order, as suffering from the vice of non-application of mind, is that,
there is variance in the alleged activities stated by the Detaining
Authority in the Order of Detention and the ones mentioned in the
Grounds of Detention. The Grounds of Detention, even if read as a
whole, would, at best, indicate that the satisfaction recorded is only in
respect of the detenu having abetted in the commission of the offence;
and yet, the Order of Detention proceeds against the detenu also for
having engaged in smuggling goods; engaged in transporting,
concealing, keeping smuggled goods and harbouring persons engaged
in smuggling goods. For this singular reason, the Detention Order is
vitiated. The last common ground urged by the learned counsel for the
petitioners is that there is unexplained and inordinate delay in deciding
the representation made by the detenues, both by the Detaining
Authority as well as the State Government.
10. Accordingly, we shall now turn to the challenge on the
ground that the impugned Detention Orders suffer from the vice of
non-application of mind. The facts relevant for deciding this
contention are common in all the three cases. For the sake of
convenience, we shall refer to the relevant dates mentioned in the
petition filed in respect of Detenu Jadhav.
14 233211
11. According to the petitioners, the proposal was received by
the Detaining Authority on 19th July, 2011 and the Detaining Authority
proceeded to examine all the proposals together within one day and
passed the order on 20th July, 2011, as also recorded Grounds for
Detention. As regards this contention of the petitioners, the Detaining
Authority, in reply-affidavit dated 13th September, 2011 in paragraph 5,
has averred as follows:-
"... a proposal for preventive detention under COFEPOSA
Act in case of Shri Bala Baburao Jadhav and four others was
submitted by the Joint Commissioner of Customs
(Preventive) Mumbai vide its letter dtd. 06.05.2011 which
was received in this office on 6.5.2011. The proposal was
scrutinized by the concerned Assistant and was submitted on
1.6.2011 to the Under Secretary who endorsed it on 1.6.2011
and forwarded it to Deputy Secretary. The Deputy Secretary
endorsed it on 1.6.2011 and the proposal was submitted to
me. I have directed to get information on certain points
from Sponsoring Authority. The information was called
from Sponsoring Authority vide letter dated 9.6.2011. The
said information was received from the Sponsoring
Authority vide letter dtd. 27.6.2011. The concerned
Assistant prepared a note on 29.6.2011 and submitted it to
the Under Secretary who endorsed it on 30.6.2011 and
forwarded it to Deputy Secretary. The Deputy Secretary
endorsed it on 2.7.2011 and the proposal was submitted to
me. I endorsed it on 11.7.2011 and directed to get the
documents stamped. By its letter dtd. 11.7.2011 the
Sponsoring Authority forwarded the copy of Show Cause
Notice, dtd. 4.7.2011 which was submitted to me and on
12.7.2011 I as the Detaining Authority directed to include it
in relied upon documents. Thereafter on 19.7.2011 the
stamped relied upon documents were submitted to me. I as
the Detaining Authority directed to issue the detention Order
by drafting the Detention Order along with the grounds of
detention and also directed to submit the fair copy of the
same. Accordingly the fair copy of the Detention Order and
the grounds of detention was submitted to me on 20.7.2011
15 233211
and on the same day the detention order was issued against
the detenu.
I as the Detaining Authority, on the material facts available
on record and after my subjective satisfaction with the
documentary presentation as clearly stated in the grounds of
detention, communicated to the detenu. I arrived at the
decision that the detenu should be detained under the
provisions of the COFEPOSA Act and accordingly
Detention Order was passed." (emphasis supplied)
12. On analysing the stand taken by the Detaining Authority
in its proper perspective, it appears to us that the process of scrutiny of
the proposals by the Detaining Authority commenced on 1st June, 2011,
when the same were endorsed to her by the Deputy Secretary. She
directed to get necessary information on certain points from the
Sponsoring Authority. After the said information was received from
the Sponsoring Authority, the proposal was scrutinised further, in the
first place, by the concerned Assistant and submitted to the
Under Secretary, who, in turn, made his endorsement and forwarded
the same to the Deputy Secretary. The Deputy Secretary, thereafter,
made his endorsement and submitted the proposal before the Detaining
Authority. The proposal was, once again, scrutinised by the Detaining
Authority after it was received from the Deputy Secretary on 2nd July,
2011. The fact that the Detaining Authority had made endorsement on
the proposal on 11th July, 2011 and directed to get the documents
16 233211
stamped pre-supposes that the Detaining Authority had once again
examined the proposal after its receipt. The Detaining Authority
received further documents from the Sponsoring Authority on his
Show Cause Notice dated 4th July, 2011 on 12th July, 2011. The
Detaining Authority directed inclusion of the said Show Cause Notice
in the compilation of relied-upon documents. No doubt, the final
proposal consisting of stamped relied-upon documents were received
by the Detaining Authority on 19th July, 2011 and the Detention Orders
and the Grounds of Detention were issued on 20th July, 2011. That,
however, does not mean that only on and after 19th July, all the four
proposals were examined by the Detaining Authority for the first time,
that too, in one day, as is suggested by the petitioners. Moreover, it
cannot be overlooked that since all the four proposals pertained to the
self-same transaction, most of the relied-upon documents therein - 19
documents running into 294 pages in case of Detenu Jadhav, 20
documents running into 302 pages in the case of Detenu Waghmare
and 23 documents running into 346 pages in the case of Detenu
Dhakne - were bound to be overlapping, as is evident from the list of
documents in the three cases before us:-
17 233211
Sr.No. Cri.W.P. 2332 OF 2011 Cri.W.P. 2333 OF Cri.W.P. 2683 OF
2011 2011
1. Checklist for Export 8984595 Shipping Bill No. Shipping Bill No.
dtd 26-10-10 (with Declaration, 8984595 dtd 8984595 dtd
Annex-A, Invoice Details, Item 26-10-10 (with 26-10-10 (with
Details etc.) Checklist, Invoice, Checklist, Invoice,
Checklist for Export 8984588 Packing List) Packing List)
dtd 26-10-10 (with Declaration, Shipping Bill No. Checklist for
Annex-A, Invoice Details, Item 8984588 dtd Export 8984588
Details etc.) 26-10-10 (with dtd 26-10-10 (with
Checklist for Export 8984570 Checklist, Invoice, Checklist, Invoice,
dtd 26-10-10 (with Declaration, Packing List) Packing List)
Annex-A, Invoice Details, Item Shipping Bill No. Checklist for
Details etc.) 8984570 dtd Export 8984570
Checklist for Export 8984619 26-10-10(with dtd 26-10-10 (with
dtd 26-10-10 (with Declaration,
ig Checklist, Invoice, Checklist, Invoice,
Annex-A, Invoice Details, Item Packing List) Packing List)
Details etc.) Shipping Bill No. Checklist for
Checklist for Export 984577 dtd 8984619 dtd Export 8984619
26-10-10 (with Declaration, 26-10-10 (with dtd 26-10-10 (with
Annex-A, Invoice Details, Item Checklist, Invoice, Checklist, Invoice,
Details etc.) Packing List) Packing List)
Checklist for Export 8984546 Shipping Bill No. Checklist for
dtd 26-10-10 (with Declaration, 8984577 dtd Export 984577 dtd
Annex-A, Invoice Details, Item 26-10-10 (with 26-10-10 (with
Details etc.) Checklist, Invoice, Checklist, Invoice,
Checklist for Export 8984811 Packing List) Packing List)
dtd 26-10-10 (with Declaration, Shipping Bill No. Checklist for
Annex-A, Invoice Details, Item 8984796 dtd Export 8984796
Details etc.) 26-10-10 (with dtd 26-10-10 (with
Checklist for Export 8984796 Checklist, Invoice, Checklist, Invoice,
dtd 26-10-10 (with Declaration, Packing List) Packing List)
Annex-A, Invoice Details, Item Shipping Bill No. Checklist for
Details etc.) 8984546 dtd Export 8984546
26-10-10 (with dtd 26-10-10 (with
Checklist, Invoice, Checklist, Invoice,
Packing List) Packing List)
Shipping Bill No. Checklist for
8984546 dtd Export 8984811
26-10-10 (with dtd 26-10-10 (with
Checklist, Invoice, Checklist, Invoice,
Packing List Packing List)
Shipping Bill No.
8984811 dtd
26-10-10 (with
Checklist, Invoice,
Packing List)
18 233211
2 Statement of Shri Khalil A.R.A. Letter of Freight Blank Declarations
Kapadia PD No. 2 dated Systems dated signed by PD (7
24.11.10 18-02-11 Nos.)
3 Statement of Shri Khalil A.R.A. Statement of Statement dated
Kapadia PD No. 2 dated 2.11.10 Shri Khalil A.R.A. 24.11.10 of
Kapadia PD No. 2 Shri Khalil A.R.A.
4 Statement of S.J. Naeemuddin Statement of Statement dated
PD No. 1 dated 18.11.10 Shri Khalil A.R.A. 2.11.10 of
Kapadia PD No. 2 Shri Khalil A.R.A.
5 Statement of S.J. Naeemuddin Statement of Statement dated
PD No. 1 dated 02.11.10 Sh.S.J.Naeemuddin 18.11.10 of
PD No. 1 dated Shri Saiyed J.
ig 18.11.2010 Naeemuddin
6 Statement of Shri Ashok P. Statement of Statement dated
Dhakane PD No. 3 dated Sh.S.J.Naeemuddin 02.11.10 of
14.03.11 PD No. 1 dated Shri Saiyed J.
02-11.2010 Naeemuddin
7 Statement of Shri Ashok P. Statement of PD Statement dated
Dhakane PD No. 3 dated dated 03-03-2011 14.03.11 of
19.11.10 Shri Saiyed J.
Naeemuddin
8 Statement of Shri Ashok P. Statement of Shri Statement dated
Dhakane PD No. 3 dated Ashutosh Rai 15.12.10 of
02.11.10 dated 08-02-2011 Shri Bala Baburao
Jadhav
9 Statement of PD dated Statement of Shri Statement dated
14.03.2011 Ashutosh Rai 16.11.10 of
dated 11-02-2011 Shri Bala Baburao
Jadhav
10 Statement of PD dated Statement of Statement of PD
21.02.2011 Shri Khalil A.R.A. dated 14.03.2011
dated 06-12-2010
19 233211
11 Statement of PD dated Statement of Statement of PD
15.12.2010 Shri S.J. dated 01.03.2011
Naeemudidn
PD No. 1 dated
01-12-2010
12 Statement of PD dated Statement of PD Statement of PD
16.11.2010 dated 07.02.2011 dated 10.02.2011
13 Photo index of all PDs Statement of PD Statement of PD
dated 28.12.2010 dated 03.12.2010
14 Government Approved Valuer Photo index of all Statement of PD
Report dated 30.11.2010 PDs dated 01.12.2010
15 Textile Committee Report dated Government Statement of PD
22-12-2010 Approved Valuer dated 19.11.2010
Report dated
Seizure Memo dated
30.11.2010
Textile Committee Statement of PD
12.01.2011 Report dated dated 19.11.2010
22-12-2010
17 Detention Panchnama dated Seizure Memo Photo index of all
29.11.2010 dated 12.01.2011 PDs
18 Order Bail (2 copies) Detention Government
Panchanama dated Approved Valuer
29.11.2010 Report dated
30.11.2010
19 Show Cause Notice, dated Order Bail Textile Committee
4.7.2011 issued u/s 124 of the (2 copies) Report dated
Customs Act, 1962 22-12-2010
20 Show Cause Seizure Memo
Notice, dated dated 12.01.2011
4.7.2011 issued u/s
124 of the Customs
Act, 1962
21 Detention
Panchanama dated
29.11.2010
22 Order Bail
(2 copies)
23 Show Cause Notice
u/s 124 of the
Customs Act, 1962
20 233211
13. Suffice it to observe that, going by the assertions made in
the reply-affidavit of the Detaining Authority, there is no reason to
assume that the Detaining Authority examined the proposals only in
one day, as is suggested by the petitioners. The contents of the reply-
affidavit would suggest that the scrutiny of the proposals began with
the noting of the Detaining Authority after its receipt on 1st June, 2011,
directing furnishing of certain information from the Sponsoring
Authority, which scrutiny culminated in the order dated 20th July, 2011
and formulation of Grounds of Detention. Since more than one person
was involved in hatching conspiracy and its execution pertaining to the
same transaction, there was nothing wrong for the Detaining Authority
to consider all the proposals together. It is, therefore, in the facts of the
present case, not possible to countenance the assumption of the
petitioners that the Detaining Authority scrutinised four Detention
Orders as also formulated separate Grounds of Detention in four cases
on the same day. In our opinion, the ground under consideration is
devoid of merits.
14. That takes us to the argument that the impugned Detention
Orders suffer from non-application of mind and are vitiated because the
activities stated in the Orders of Detention are non-existent (not
21 233211
mentioned) in the grounds of Detention. Inasmuch the Order of
Detention in each of these cases refer to the activities covered by
clauses (i) to (v) of sub-section (1) of Section 3 of the said Act.
However, the Grounds of Detention, at best, can be said to be
ascribable to the activities covered only under clause (ii) i.e. , abetting
the smuggling of goods qua Detenu Jadhav and Detenu Waghmare.
As regards Detenu Jadhav, he was the employee of C.H.A. Firm in
which Detenu Dhakne was the Partner. He prepared the offending
shipping bills under instructions of Detenu Dhakne. As regards Detenu
Waghmare, material would indicate that he went to Surat to solicit
probable exporter and discuss the export strategy with customer, for
which, he was to charge fixed amount of Rs.10,000/- per container.
The acts of commission and omission of Detenu Waghmare also attract
only abetting the smuggling of goods, as he was not the exporter or
manufacturer of goods himself.
15. We have already adverted to the activities referred to in the
Grounds of Detention by the Detaining Authority as against each of the
detenues. In the case of Detenu Jadhav, the allegation is that he
prepared and signed the eight shipping bills and related documents for
exports of M/s. Noble Impex and completed custom dock formalities
22 233211
without scrutinising the export documents. He submitted blank
annexure / declaration to generate the checklist. He submitted
overwritten / correct customs cleared documents at EDI Centre,
Kalamboli, without proper permission of the Customs. He admitted
misdeclaration in description, quantity, quality, valuation of the export
goods and claiming drawback fraudulently by the exporter, thereby
indulging and abetting in smuggling activities. Even in the case of
Detenu Waghmare, it is noticed that he was part of a larger conspiracy
and entered into conspiracy to earn money by improper export and
claiming drawback fraudulently. For that, he went to Surat to solicit
probable exporter and discussed the export strategy with exporter. He
fixed his emoluments at Rs.10,000/- per container as his charges. He
helped the exporter to get I.E.C. Code. He also arranged transport for
the export of goods from Surat to Mumbai, kept the goods at
warehouse at Mumbai, removed and transported export goods to shed.
He introduced the exporter to Clearing House Agent M/s. Dhakne &
Co. and booked the container for the export goods from M/s. Freight
Services, Mumbai. In substance, the allegation against him was of
having removed export goods from warehouse through his associate,
arranged transport and transported the export goods to shed, thereby
23 233211
aided and abetted improper export for claiming higher drawback
fraudulently, thereby indulging and abetting in smuggling activities.
16. Notably, all the detenues were working in a well-organised
manner and by their acts of commission and omission were engaging
themselves in prejudicial activities. Similarly, in the case of Detenu
Dhakne, the action is founded on the basis that he abetted improper
exports and claiming drawback fraudulently by offering his C.H.A.
services to the exporter for the alleged prejudicial activities. The
exporter and his associate showed the sample of export goods to him
and he, in turn, instructed his staff to prepare the shipping bills and
related documents for export. He instructed his staff to prepare, file the
shipping bills and complete the Customs dock formalities. He offered
his C.H.A. service without verifying quality and quantity of the
samples of the items to be exported. He gave the blank annexure /
declaration to his employee, Detenu Jadhav. He admitted
misdeclaration in description, quantity, quality, valuation of the export
goods and claiming drawback fraudulently by the exporter. In
substance, he was indulging and abetting in smuggling activities.
24 233211
17. Expression "smuggling" has been defined in Section 2(39)
of the Customs Act, 1962. It means, in relation to any goods, any act
or omission which will render such goods liable to confiscation under
Section 111 or Section 113. In the present case, the act of commission
and omission was in respect of the goods attempted to be exported or
brought within the limits of Customs area for the purpose of being
exported, and more particularly, goods entered for exportation under
claim for drawback, which did not correspond, in any material
particular, with the information furnished by the exporter or
manufacturer under the Customs Act in relation to the fixation of rate
of drawback under Section 75. It is true that none of the detenues are
themselves exporters or manufacturers of goods entered for
exportation. At best, they can be said to be facilitators or agents.
However, as they were associated with the prejudicial activities in that
capacity, they can, certainly, be made liable for abetting the activity of
smuggling of goods within the meaning of Section 3(1)(ii) of the
COFEPOSA. The allegation against them is also of not disclosing the
identities of the persons involved in the smuggling, as they were
actively involved in the prejudicial activities. Thus the detenues can be
said to have indulged in harbouring persons engaged in smuggling
goods or in abetting the smuggling of goods, within the meaning of
25 233211
Section 3(1)(v) of COFEPOSA. That does not require them to be the
exporters or manufacturers of goods, who may be directly engaging in
smuggling goods. All others, such as facilitators, nonetheless, can be
proceeded for abetting the smuggling of goods or for harbouring
persons engaged in smuggling of goods and abetting the smuggling
goods. The petitioners, however, relying on the observations in the
decision of our High Court in Maheshchandra Saxena v. State of
Maharashtra - 2007 All MR (Cri) 2673, in particular paragraphs 24
and 25 thereof, would contend that, even in the present cases, the
detenues merely acted as agents and were not the owners of the goods.
This decision is not an authority on the proposition that preventive
detention action can never be taken against the persons, who merely act
as agents in commission of prejudicial activities. On the contrary, the
purport of clauses (ii) and (v) of sub-section (1) of Section 3 of
COFEPOSA is sufficient to initiate preventive action even against the
agents in crime or prejudicial activities.
18. Indeed, the petitioners are justified in pointing out that the
Order of Detention refers to all the five activities provided for in
Section 3(1) of the said Act, under Clauses (i) to (v) thereof,
empowering the Detaining Authority to detain any person with a view
26 233211
to preventing him from, in any manner, prejudicial to the conservation
or augmentation of foreign exchange or with a view to preventing him
from indulging in specified prejudicial activities; whereas, the grounds
of detention, at best, may spell out only activity ascribable to clauses
(ii) and (v). In other words, the other activities stated in the Order of
detention cannot be supported on the basis of the activities mentioned
in the Grounds of Detention. That, according to the petitioners, reflects
on the subjective satisfaction recorded by the Detaining Authority; and,
resultantly, the Order of Detention is vitiated on that count. Reliance is
placed by the petitioners on the decision of our High Court in the case
of Bhavesh Kantilal Jain vs. State of Maharashtra reported in
1998 All MR (Cri.) 175 to buttress the argument that the activities
referred to in the order of detention from amongst the five activities
specified in sub-section (1) of Section 3 should be present in the
grounds of detention as well. In that case, however, it was noticed from
the grounds of detention that the Detaining Authority was satisfied that
the detenu and his associates were found in possession of the smuggled
gold, but the order of detention was issued for preventing the detenu in
future from smuggling goods. In this background, the Public Prosecutor
had contended that it was not necessary to specify the activity referred
to in sub-section (1) in the order of detention. That contention has been
27 233211
rejected in paragraph 24 of the reported decision. In the present case,
however, it is noticed that the order of detention refers to all the five
activities specified in sub-section (1) of Section 3 of COFEPOSA,
whereas, the grounds of detention refer to only activities ascribable to
clauses (ii) and (v) of sub-section (1) of Section 3 i.e. of abetting the
smuggling of goods or harbouring persons engaged in smuggled goods
or in abetting the smuggling of goods respectively.
19. To get over this position, the respondents would contend
that non-mention of other activities in the Grounds of Detention - for
smuggling goods, engaging in transporting or concealing or keeping
smuggled goods, dealing in smuggled goods otherwise than by
engaging in transporting or concealing or keeping smuggled goods,
would make no difference. Even in absence of reference to those
activities in the Grounds of Detention, the Order of Detention would be
saved, at least on account of presence of one or the other activity
specified in the Grounds of Detention; to wit, abetting the smuggling
of goods or harbouring persons engaged in smuggling goods or in
abetting the smuggling of goods, by virtue of Section 5-A of the said
Act.
28 233211
20. The counsel for the petitioners, however, would rely on
the decision of Division Bench of our High Cort in the case of
Smt. Shashikala Krishnarao Rane v. Union of India & Ors., 1987
Cr. L.J. 1787. Even in that case, the Order of Detention was based on
clause (ii) of sub-section (1) of Section 3 of the said Act, i.e., abetting
of smuggling of goods and also on clause (iii) of sub-section (1) of
Section 3 of the said Act for engaging in concealing or keeping
smuggled goods. The petitioner in that case did not dispute the fact
that, as regards clause (ii), which related to the abetting of smuggling of
goods, the order as well as the Grounds of Detention referred to the
said activity. In the background of those facts, the counsel appearing
for the State in that case had urged that the Order of Detention is saved
on the principle of severability, keeping in mind the mandate of Section
5-A of the said Act. That argument, however, came to be rejected in
the following words:-
"13. ...... Section 5-A provided that where a person had
been detained in pursuance of an order of detention under
sub-s. (1) of S. 3 which had been made such order of
detention could be deemed to have been made separately on
each of such grounds and accordingly such order could not
be deemed to be invalid or inoperative merely because one
or some of the grounds were (i) vague, (ii) non-existent, (iii)
not relevant, (iv) not connected or not proximately
connected with such person, or (v) invalid for any other
reason whatsoever. Now it is necessary to point out that S.
5-A relates to the grounds furnished to a detenu in support
of the Order of detention. It does not apply to an Order of
detention. The grounds of detention are supplied to a detenu
29 233211
under sub-s. (3) of S. 3 of the COFEPOSA Act. Sub-sec. (3)
of S. 3 of the COFEPOSA Act is in the following terms:-
'(3) For the purposes of Cl. (5) of Art. 22 of the
Constitution, the communication to a person detained
in pursuance of a detention order of the grounds on
which the order has been made shall be made as soon
as may be after the detention, but ordinarily not later
than five days, and in exceptional circumstances and
for reasons to be recorded in writing, not later than
fifteen days, from the date of detention.'
It is therefore apparent that S. 5-A relates to the grounds
furnished to a detenu in support of the order of detention and
it has no relevance to the Order of detention. We must
therefore reject the submission made by Mr. Bhobe."
ig (emphasis supplied)
21. Reliance is also placed on the unreported decision of the
Division Bench in the case of Babulal Dhanji Makwana v. The State
of Maharashtra & Ors., in Criminal Writ Petition No. 1051 of 2002
decided on 8th April, 2003. In that case, the Court found that, in the
grounds of detention, the role of the detenu was, at best, one of carrier.
However, he was detained for smuggling goods. In paragraph 13 of
this decision, the Court has opined:-
"13. We are also of the opinion that the detention order
cannot be sustained on the ground that it was necessary to
detain the detenu to prevent him from acting in any manner
prejudicial to the conservation of foreign exchange with the
aid of Section 5-A of the COFEPOSA. In Shashikala
Krishnarao Rane vs. Union of India and others reported in
1987 Cr. L.J. 1797, the Division Bench of this Court has
held that Section 5-A of the COFEPOSA relates to the
grounds furnished to a detenu in support of the order of
detention and it has no relevance to the order of detention.
Therefore, even assuming that there could be some material
30 233211
to come to the conclusion that the detenu was acting in any
manner prejudicial to the conservation of foreign exchange,
the order cannot be saved with the aid of Section 5-A of the
COFEPOSA. In the circumstances, the order of detention
will have to be set aside."
22. Reliance is also placed on the decision in the case of
Gimik Piotr v. State of Tamil Nadu & Ors., (2010) 1 SCC 609, in
particular, paragraphs 27, 28, 31 and 35. In our opinion, this judgment
may be useful for some other proposition, but certainly, not for the
question under consideration. Inasmuch as this judgment deals with
only two issues formulated in paragraph 16 of the reported judgment,
and the same has no bearing on the question under consideration. The
question is: Whether Section 5-A of the said Act applies only to the
grounds furnished to a detenu and not to an Order of Detention, as has
been expounded in the case of Shashikala Rane (supra)? Indeed, the
question was specifically posed in that case, as the same had arisen for
consideration therein. The Court opined that Section 5-A of the said
Act applied only to ground furnished to a detenu in support of the
Order of Detention; and it has no relevance to the Order of Detention
as such. This is the only logic that can be deduced from the above
quoted extract. The other unreported judgment of our High Court
relied upon in Makwana's case (supra) merely follows the dictum in
31 233211
Shashikala Rane's case. In our opinion, the above view, with utmost
respect, whittles down the intent behind the enactment of Section 5-A,
which is primarily, to save the order of detention from being declared
invalid or inoperative merely because one or some of the grounds
referred to therein are vague; non-existent; not relevant; not connected
or not proximately connected with such person; or invalid for any other
reason whatsoever. To put it differently, if the Order of Detention, as
in this case, were to refer to acts or omission constituting smuggling
goods along with other specified activities in Section 3(1) of the said
Act; but, in the Grounds of Detention furnished to the detenu, no
reference is made to the activity of smuggling goods at all. Such order
of detention would be bad as a whole, but then, it is saved on account
of a legal fiction in Section 5A, if the other ground in support of the
order of detention is relevant, definite and proximate. That is amply
clear from the plain language of Section 5-A itself, which reads thus:-
"5-A. Grounds of detention severable.--Where a person
has been detained in pursuance of an order of detention
under sub-section (1) of Section 3 which has been made on
two or more grounds, such order of detention shall be
deemed to have been made separately on each of such
grounds and accordingly--
(a) such order shall not be deemed to be invalid or
inoperative merely because one or some of the
grounds is or are--
(i) vague,
(ii) non-existent,
32 233211
(iii) not relevant,
(iv) not connected or not proximately
connected with such person, or
(v) invalid for any other reason whatsoever,
and it is not, therefore, possible to hold that the
Government or officer making such order would
have been satisfied as provided in sub-section (1) of
section 3 with reference to the remaining ground or
grounds and made the order of detention;
(b) the Government or officer making the order of
detention shall be deemed to have made the order of
detention under the said sub-section (1) after being
satisfied as provided in that sub-section with
reference to the remaining ground or grounds."
ig (emphasis supplied)
23. We are conscious of the fact that it is not open for the
Bench of coordinate jurisdiction to take a different view than the one
already taken by another Bench on a question of law. However, we are
fortified in our opinion on the basis of the decision of the Constitution
Bench of the Apex Court in Attorney General for India & Ors. v.
Amratlal Prajivandas & Ors., (1994) 5 SCC 54. Although the
unreported decision of another Division Bench was rendered after the
aforesaid decision of the Apex Court, it has not noticed the same.
Instead, it makes reference to and follows the legal statement occurring
in the earlier decision of Division Bench of this Court in Shashikala
Rane's case on the point under consideration.
33 233211
24. In our opinion, in view of the dictum of the Apex Court in
Attorney General for India's case (supra), the legal position stated in
Shashikala Rane's case, and as followed in the unreported decision in
Babulal Makwana's case, stands impliedly over-ruled. The
Constitution Bench of the Apex Court posed to itself Question No. 6 as
follows:-
"Whether Section 5-A of COFEPOSA is violative of Clause (5)
of Article 22?"
The challenge was inter alia on the basis that the parliament was not
competent to make a law saying that where the grounds upon which the
requisite satisfaction has been formed on partly good and partly bad,
yet the order must be held to be good with reference to and on the basis
of good grounds; eschewing the bad grounds. That law will be directly
in conflict with Article 22(5). While answering the said question, the
Apex Court has interpreted Section 5-A of the said Act. In paragraph
47, the Court observed thus:-
"47. The section is in two parts. The first part says that
where an order of detention is made on two or more grounds,
'such order of detention shall be deemed to have been made
separately on each of such grounds', while the second part
says that such order shall not be deemed to be invalid or
inoperative merely for the reason that one or some of the
grounds are either vague, non-existent, irrelevant or
34 233211
unconnected. That the second part is merely a continuation
of and consequential to the first part is evident from the
connecting words 'and accordingly'. The second part goes
further and says that the order of detention must be deemed
to have been made on being satisfied with the remaining
good ground or grounds, as the case may be. Both the parts
are joined by the word 'and'."
Again, in paragraph 49, the Court observed thus:-
"49. Now, take a case, where three orders of detention are
made against the same person under COFEPOSA. Each of
the orders is based upon only one ground which is supplied
to the detenu. It is found that the ground of detention in
support of two of such orders is either vague or irrelevant.
But the ground in support of the third order is relevant,
definite and proximate. In such a case, while the first two
orders would be quashed, the third order would stand. This
is precisely what the first part (the main part) of Section 5-A
seeks to do. Where the order of detention is based on more
than one ground, the section creates a legal fiction, viz., it
must be deemed that there are as many orders of detention as
there are grounds which means that each of such orders is an
independent order. The result is the same as the one in the
illustration given by us hereinabove. The second part of it is
merely clarificatory and explanatory, which is evident from
the fact that it begins with the word 'accordingly' - apart
form the fact that it is joined to the first part by the word
'and'. In such a situation, we are unable to see how can the
section be characterised as inconsistent with Article 22(5).
Had there been no first part, and had the section consisted
only of the second part, one can understand the contention
that the section is in the teeth of Article 22(5) as interpreted
by this Court - this was indeed the situation in K. Yadigiri
Reddy v. Commissioner of Police, ILR 1972 AP 1025 as we
shall presently indicate. It is difficult to conceive any
inconsistency or conflict between Article 22(5) and the first
- the main - part of Section 5-A. Parliament is competent to
create a legal fiction and it did so in this case. Article 22(5)
does not in terms or otherwise prohibit making of more than
one order simultaneously against the same person, on
different grounds. No decision saying so has been brought
to our notice. Be that as it may, we do not see why
Parliament is not competent to say, by creating a legal
fiction, that where an order of detention is made on more
than one ground, it must be deemed that there are as many
35 233211
orders of detention as there are grounds. If this creation of a
legal fiction is competent, then no question of any
inconsistency between the section and Article 22(5) can
arise." (emphasis supplied)
25. It may be useful to also refer to the dictum of the Apex
Court in the case of State of Gujarat v. Chamanlal Manjibhai Soni,
(1981) 2 SCC 24, which reads thus:-
"What Section 5-A (of the COFEPOSA) provides is that
where there are a number of grounds of detention covering
various activities of the detenu spreading over a period or
periods, each activity is a separate ground by itself and if
one of the grounds is irrelevant, vague or unspecific but the
other grounds are clear and specific, then that by itself
would not vitiate the order of detention."
(emphasis supplied)
26. A priori, we have no hesitation in taking the view that in
the facts of this case, the impugned Order of Detention will be saved by
virtue of Section 5-A of the COFEPOSA at least in respect of activities
referable to clauses (ii) and (v) of Section 3(1) of the act, which are
present both in the Order of Detention as well as the Grounds of
Detention. The said grounds in support of the order are relevant,
definite and proximate.
27. Relying on the decision of the Karnataka High court in the
case of Anwar Abdulla etc., v. The union of India & Ors., 1992
36 233211
Cri. L.J. 3616, it was then argued that merely approving the remarks
noted by the subordinate officers, in particular the Sponsoring
Authority, is a case of non-application of mind by the Detaining
Authority or the Authority deciding the representation. In the first
place, the opinion recorded by the Karnataka High Court is in the
context of the fact situation of the case before it, wherein even the
grounds were made ready by someone else than the Detaining
Authority. Our attention was also invited to the decision of the Apex
Court in the case of Rajesh Vashdev Adnani vs. State of
Maharashtra reported in 2006 All MR (Cri.) 1781 (S.C.). In that
case, the Detaining Authority directed obtaining of some documents
when the proposal for detention of the detenu was submitted. She also
sought for the statement made by the detenue before the Additional
Chief Metropolitan Magistrate. The Detaining Authority further took
note of a purported pre-detention representation made by the detenu on
18th April, 2004. It was also noted that the detention order was passed
upon discussions made with three Officers. Further, the order of
detention as well as grounds were formulated and placed before the
Detaining Authority for approval. It was noticed that only small
changes were made by some Officers such as substituting words "he"
by "you". The change in the proposal and the order of detention being
37 233211
verbatim suffered from non-application of mind. The Court accepted
the said challenge and found that it was a case of non-application of
mind on the part of the Detaining Authority. That conclusion reached
by the Court was in the fact situation of that case. That is not the case
on hand. There is nothing to indicate that the Grounds of Detention
have been formulated by someone - other than the Detaining Authority
herself. The fact that the Detaining Authority considered the noting
made by the other officers in succession, by itself, does not mean that it
would be a case of non-application of mind, unless something more
was shown. Suffice it to hold that in the present case, it is not possible
to take the view that the Detaining Authority herself did not examine
the proposal independently or formulated the grounds for detention on
her own.
28. The counsel for the petitioners had then relied on the
decision of the Apex Court in Vijay Kumar Dharna Alias Koka v.
Union of India - (1990) 1 SCC 606. We fail to understand how this
decision will be of any avail to the petitioners. In that case, the Court
noted that there was variance in the Gurumukhi version of the
detention order and that in the English version. In Gurumukhi version,
it was mentioned that it had become necessary with a view to
38 233211
preventing the detenu from smuggling goods and from abetting the
smuggling of goods - activities prescribed in clauses (i) and (ii) of
Section 3(1) of COFEPOSA. But in grounds of detention, the
satisfaction recorded by the Detaining Authority was in respect of
preventing the detenu from concealing, transporting smuggled goods as
well as dealing in smuggled goods - activities prescribed in clauses (iii)
and (iv) of Section 3(1). More or less, similar is the factual position
found in the case of Prithvi Sovera Kuntal v. State of Maharashtra -
2001 All MR (Cri) 1163. In that case, the detenu was sought to be
detained to prevent him in future from abetting the smuggling of goods,
whereas the grounds of detention mentioned reason as to prevent the
detenu in future from smuggling of goods. Reliance was placed on
another decision of the Apex Court in the case of Bannalal Vahilda
Chavla vs. Union of India & Ors. Reported in (1999) 6 SCC 210.
Once again, the Court interfered with the detention order on the
finding that the satisfaction arrived at by the Detaining Authority
cannot be said to be reasonable and genuine. Having found that there
was hardly any reason for the detenu to collude with the firm which
39 233211
was dishonestly selling blue-coloured kerosene to those not entitled to
it and was thus indulging in black marketing of blue-coloured kerosene.
In none of the above mentioned decisions, the question whether the
order of detention was and could be saved on other valid, relevant and
proximate ground by virtue of Section 5A of the Act was put in issue.
29. That takes us to the next argument that the continued
detention of the respective detenues had become illegal and
unconstitutional on account of delay in deciding the representation by
the State Government as well as the Detaining Authority. The relevant
dates for considering this submission are common to first two cases
that of detenues Jadhav and Waghmare. In the petition filed by Detenu
Jadhav, the representation was submitted by the detenu on 8th August,
2011 addressed to the State Government as well as the Detaining
Authority. The Detaining Authority considered the representation on
7th September, 2011 and the State Government considered it on 5th
September, 2011, respectively. It is common ground that the
representation dated 8th August, 2011 was received on 9th August, 2011.
From the original record, which was produced before us, it is noticed
that, on receipt of the said representation in Mantralaya, para-wise
40 233211
remarks of the Sponsoring Authority were invited vide letter dated 11th
August, 2011. The said letter was sent by ordinary post, which was
received in the Office of the Sponsoring Authority on 16th August,
2011. On 17th August, 2011, the concerned officer was busy in the
High Court in connection with criminal writ petition filed by the
detenu. The para-wise comments were prepared on 18th and 19th
August, 2011. 20th August, 2011, being Saturday, 21st August, 2011,
being Sunday and 22nd August, 2011, being a public holiday, the file
was put up for discussion and approval of para-wise comments before
the Joint Commissioner on 23rd August, 2011. The final para-wise
comments sent by Joint Commissioner was despatched on 24th August,
2011. A copy was sent to Mantralaya on 25th August 2011. That copy
was received in Mantralaya on 26th August, 2011. 27th and 28th August,
2011 were holidays. On 29th August, 2011, due to heavy rains, the
transport system in the city was totally paralysed, as a result of which,
there was no attendance in the office. On 30th August, 2011, the
representation was submitted along with the para-wise comments and
other remarks to the Detaining Authority as well as the Appropriate
Authority of the State Government. 31st August, 2011 and 1st
September, 2011, being holidays, the representation could not be
processed by the concerned officers. On 2nd September, 2011, the
41 233211
Under Secretary processed the file and made his endorsement. 4th
September, 2011 was a holiday. The file was accordingly put up before
the Deputy Secretary, who made his endorsement and signed it on 5th
September, 2011. On the same day, the file was placed before the
Additional Chief Secretary, being the Appropriate Authority of the
State Government, who considered the representation and rejected the
same. The representation was, however, considered by the Detaining
Authority on 7th September, 2011 and came to be rejected. Both the
Offices of the Detaining Authority and the Appropriate Authority of
the State Government informed the detenu about the rejection of the
representation by communication dated 7th September, 2011.
30. In the reply-affidavit filed on 13th September, 2011 by the
Detaining Authority before this Court, for some inexplicable reason, it
has been mentioned that the representation was undecided till then.
This anomaly has been explained by the respondents by pointing out
that the para-wise comments to the writ petition were forwarded by the
Detaining Authority to the Office of the Public Prosecutor before 7th
September, 2011, i.e., on 17th August, 2011. On the basis of the said
para-wise comments, the draftsman of the reply-affidavit mentioned
the said fact in the said affidavit and the Detaining Authority, while
42 233211
affirming the affidavit on 13th September, 2011, simply glossed over
this factual error which had crept in in the reply-affidavit. The
explanation is plausible one. We cannot attach much importance to
this anomaly. The fact remains that, after receipt of representation in
Mantralaya on 9th August, 2011, the same was processed continuously.
It is not a case where the representation remained unattended in any
office at any stage.
31. Indeed, the petitioners may be justified in pointing out that,
upon receipt of representation on 9th August, 2011 in Mantralaya, it
should have been placed before the concerned Authority of the State
Government and the Detaining Authority, respectively, on the same
day or soon thereafter. Instead, the office in Mantralaya invited para-
wise remarks of the Sponsoring Authority, in the first place, on its own,
without insistence by the Appropriate Authority of the State
Government or the Detaining Authority in that behalf. This argument
is completely oblivious of the working of the Government offices.
Even though the final decision to be taken on the representation is that
of the Detaining Authority or the Appropriate Authority of the State,
the file has to be processed through proper channel. That procedure is
followed as per the Rules of Business. Such process is intended to
43 233211
have checks and balances in the decision-making process, and more
particularly, to abreast the final Authority who is expected to take the
decision of all the material and relevant aspects. No fault can be found
with such a procedure. Rather, the same is in abidance with the
principle of rule of law. What is to be scrutinised by the Court is:
Whether the file was continuously moving and was attended to or it is a
case of supine indifference and callousness at any one or more stages in
the decision-making process? Considering the facts unravelled from
the reply-affidavit as well as from the notings in the original file, it is
not possible to take the view that there was any inaction, indifference
or callousness at any stage in the consideration of the representation at
all by the Detaining Authority or the Appropriate Authority of the State
Government. The learned A.P.P. has placed reliance on the decision of
the Apex Court in the case of Kamarunnissa vs. Union of India &
Anr. reported in (1991) 1 SCC 128. Even in that case, the grievance
of the detenu was that his continued detention had become illegal due
to inordinate delay in consideration of his representation by the
Authority. In Para 7 of the decision, after adverting to the relevant
dates of movement of the file/representation, which is more or less
similar to that in the present set of cases. The Court opined that it was
obvious from the explanation that there was no delay on the part of the
44 233211
Detaining Authority in dealing with the representations of the detenu.
The Court restated the legal position that whether or not the delay, if
any, is properly explained would depend on the facts of each case. As
noticed earlier, we are satisfied that there is no delay in consideration
of representations by the authority concerned.
32.
We may, however, notice that the office in Mantralaya,
after receipt of the representation on 9th August, 2011, sent
communication to the Sponsoring Authority, inviting its para-wise
remarks on the representation by communication dated 11th August,
2011. That letter was received in the office of the Sponsoring
Authority only on 16th August, 2011. We were appalled to note that
the said communication was sent by "ordinary post" to the office of the
Sponsoring Authority, which was situated at a distance of only around
2½ km. from Mantralaya. The office practice followed in Mantralaya
of despatching all communications by ordinary post is being followed
even in cases involving question of life and liberty of a detenu. We
can only deprecate that such practice is being followed even in respect
of representations made by detenues. Instead, such communications
ought to be sent by hand-delivery or special messenger to the
45 233211
Sponsoring Authority, and more so when his office was situated only
around 2½ km. away from Mantralaya. We hope and trust that the
Secretary, Home Department, will do the needful for issuance of
instructions to all concerned that representations pertaining to detenues
should be treated as immediate file; and, in addition to exchanging
inter-departmental communications by post, the same should be sent by
hand-delivery or special messenger to avoid delay, which inevitably
infringes the rights guaranteed to detenu under the Constitution. We
may, however, observe that the time taken or spent in transmission of
the inter-departmental communication by post will be a just and
sufficient explanation by the Authority - as the Authority cannot be
faulted for that.
33. As a matter of fact, a Bench of this Court - to which one
of us was a party (A.M. Khanwilkar, J.) - in the case of Shashikant
A. Alavane v. State of Maharashtra & Ors., 2001 Cri. L.J. 1503,
particularly paragraphs 20 to 22 thereof, almost a decade back, had
occasion to make observation in this regard, considering the fact that
the Courts do not look with equanimity upon delays when the liberty of
a person is concerned. Indubitably, representations of the detenu are
required to be decided with utmost expedition as it cannot brook delay.
46 233211
It has to be taken up for consideration as soon as it is received and
dealt with continuously (unless it is absolutely necessary to wait for
some assistance in connection with it) until a final decision is taken and
communicated to the detenu.
34. The counsel for the petitioners, however, has pressed into
service the decision of the Apex Court in the case of Harish Pahwa v.
State of U.P. & Ors., AIR 1981 S.C. 1126. In that case, however, it
was found that the delay of six days in consideration of representation
by the Chief Minister was not acceptable. Reliance was also placed on
another decision of the Apex Court in the case of Harshala Santosh
Patil v. State of Maharashtra & Ors., (2006) 12 S.C.C. 211. In that
case also, there was unjustified and avoidable delay of five days in
consideration of the representation.
35. The counsel for the respondents has justly relied on the
dictum of the Apex Court in the case of Abdu Salam alias Thiyyan
S/o. Thiyyan Mohammed v. Union of India & Ors., (1990) 3 SCC 15.
In that case, the appellant made representation to the Detaining
Authority on September 27, 1998, which was rejected by the State
Government on October 1, 1998 and by the Central Government on
47 233211
November 2, 1998. The Court, after adverting to its earlier decisions,
analysed the facts of that case, and observed that, from the explanation
given by the Authority, it can be seen that the representation was
considered almost expeditiously, and there is no "negligence, or callous
inaction or avoidable red-tapism".
36. We have no manner of doubt that the said principle
applies on all fours to the fact situation of the present case. It is neither
a case of negligence or callous inaction or avoidable red-tapism, as is
evident from the reply-affidavit and the notings made in the concerned
original file of the Sponsoring Authority and that of the Detaining
Authority. In that view of the matter, even this challenge of the
petitioners ought to fail.
37. It is trite to note that, if the Authority processes the file
expeditiously, the petitioners may, as in this case, question that action
on the ground that it has resulted in non-application of mind. This is
precisely the plea taken in this case as the Detaining Authority after
receipt of resubmitted proposal on 19th July, 2011 proceeded to pass the
order of detention on 20th July, 2011. We, therefore, fail to understand
as to how the petitioners can be heard to complain about thorough
48 233211
examination of the representation by the Authority through proper
channel, which is a process known to law, and not a matter of red-
tapism. Time taken in following that procedure cannot be said to be
avoidable procedure. Indeed, the avoidable delay in the present case
due to sending the communication to the Sponsoring Authority by
"ordinary post" can be frowned upon, but it would not be a case of
negligence or callousness, or inaction of the Authority as such.
38. Taking over all view of the mater, therefore, the challenge
on the ground that there has been delay in consideration of the
representation either by the Appropriate Authority of the State
Government or the Detaining Authority, as the case may be, is devoid
of merit.
Additional points in the case of detenu Waghmare:
39. That takes us to the additional ground urged in the petition
filed in the case of Detenu Waghmare. It is the case of the petitioner
that the said detenu has studied only up to 10th standard in Marathi
Medium. He does not have workable knowledge of English Language.
However, the impugned order, along with the Grounds of Detention,
served on him was in English Language. Besides, that was not
49 233211
explained to the detenu in Marathi. Thus, the Grounds of Detention, in
law, have not been communicated to the detenu, and it is, in fact, an
infraction of Article 22(5) of the Constitution of India. The Detaining
Authority, in reply-affidavit, with reference to this plea has stated that
it went by the report of the Sponsoring Authority in the proposal that
the detenu knew English Language. The Sponsoring Authority, in the
reply-affidavit, however, merely stated that the plea taken by the
petitioner that he had no workable knowledge of English Language is
factually incorrect. The Sponsoring Authority also chose to rely on the
affidavit of the Executing Authority. The Executing Authority, in turn,
in its reply, has stated that the detenu was served with the Detention
Order along with the Grounds of Detention and Compilation on 26th
July, 2011. The detenu requested to hand over all the documents and
compilation to his cousin brother, viz., the present petitioner, i.e.,
Vikram Vithal Borhade. Accordingly, the documents were handed
over to the present petitioner.
40. The Sponsoring Authority, pursuant to the liberty given by
this Court, in the further affidavit dated 20th October, 2011, has
explained the stand taken by it in its earlier affidavit that the plea under
consideration taken by the petitioner is factually incorrect. In the
50 233211
further affidavit filed by the Sponsoring Authority, it is stated that the
office record of the Sponsoring Authority shows that the detenu has
knowledge of English Language. The detenu has studied up to 10th
standard in Marathi Medium. The Sponsoring Authority has then, on
affidavit, stated that the circumstances indicated in the affidavit would
clearly go to show that the detenu has knowledge of English Language.
To wit, when the detenu was served with summons dated 11th
November, 2010 by his letter dated 17th November, 2010, he asked for
some time on medical ground. The said reply letter is in English and
is duly signed by the detenu in English. Similarly, another
communication sent by the detenu under his own signature to the
Commissioner of Customs (Preventive) dated 22nd November, 2010, is
also in English. The Sponsoring Authority has also produced another
communication sent by the detenu in English under his own signature
dated 25th November, 2010 addressed to the Commissioner of Customs
(Preventive). Lastly, the respondents are relying on the representation
against the Order of Detention filed by him through jail in English
Language.
41. In the first place, the factual position stated in the further
affidavit has remained uncontroverted. The plea taken by the petitioner
51 233211
that he has had no workable knowledge of English is a disputed
question of fact. It is word against word. But then the respondents
have produced contemporaneous documentary evidence which
certainly suggests that the detenu himself had sent those letters in
English under his signature in English. The counsel for the petitioner,
however, was at pains to persuade us to take the view that the detenu
has no knowledge of English, but had merely signed documents
prepared by someone else presumably his Advocate. She submits that,
as regards the last document relied upon by the respondents, viz.,
representation made by the detenu under his signature sent through jail
against the Detention Order to the concerned Authority, the same was,
in fact, prepared by her and was sent to the Superintendent of Prison
under cover of her letter dated 6th August, 2011 (as produced before the
Court). Even if we accept this explanation, it does not, however,
explain as to how the detenu had sent other correspondence in English
to the Commissioner of Customs (Preventive) in response to the
summons on different dates. The learned Advocate for the detenu
wants the Court to assume that even the said letters, though issued in
the name of detenu in English and initialled by him in English, were
prepared by someone else. It is not possible to assume that fact sans
any tangible explanation as to who had helped the detenu in drafting
52 233211
the same. Therefore, it is not possible to countenance the said submission
made across the Bar, especially when the responsible officers of the
respondents, on affidavit, have stated that the file pertaining to the detenu in
the office of the Sponsoring Authority shows that the detenu is having
workable knowledge of English Language having studied up to 10th
standard, albeit in Marathi Medium. That is a plausible plea. For, it is
common knowledge that even in Marathi Medium schools, in the State of
Maharashtra, English Subject is taught as a compulsory subject from 1st
standard since 2000, and, earlier to that, from 5th standard. It is one thing
to say that the detenu is not conversant with English Language at all than to
say that he has no workable knowledge of that language. Considering the
above, the said petitioner has failed to substantiate that the detenu has no
workable knowledge of English Language.
42. The counsel for the petitioner, however, relied on the
decision in the case of Smt. Raziya Umar Bakshi v. Union of India &
Ors., AIR 1980 S.C. 1751. The only point argued in that case was that
the detenu was served with Grounds of Detention in English Language,
which she did not know or understood and no translated script was
supplied to her. The petitioners have also relied on the decision of the
Apex Court in the case of Nainmal Pertap Mal Shah vs. Union of
India & Ors. reported in AIR 1980 SC 2129. The ground urged by
the detenu in that case was that the grounds of detention furnished to
53 233211
the detenu were in English language. He was not conversant with the
said language. That challenge was countered by the respondents on the
assertion that the grounds were explained to the detenu by the Prison
Authorities. However, the Court negated that plea as in the affidavit the
name of the Authority concerned or his designation was not mentioned
nor any affidavit of the person who explained the contents of the
grounds to the detenu was filed. Even the stand taken by the
Authorities that the detenu had signed number of documents in English
and for which, it may be presumed that he knew English, came to be
rejected being founded on pure speculation. In the present case,
however, in addition to asserting that the record in the office of the
Sponsoring Authority indicates that the detenu was conversant with
English, the respondents have also relied on documentary evidence to
substantiate that in the past the detenu had entered into communication
in his own name with the concerned Authorities in English under his
own signature which was also in English. Admittedly, the detenu has
studied up to 10th standard. No rejoinder is filed by the detenu to deny
the fact asserted by the respondents or to explain the circumstances in
which he had sent the stated communications in English. It is not a case
of mere signature on number of documents in English by the detenu.
Further, the fact asserted by the respondents on affidavit that when the
54 233211
order and grounds of detention were sought to be served on the detenu,
he asked to hand it over directly to the petitioner herein who was
present at the spot. That factual position asserted by the respondents
has remained unchallenged and uncontrovertd. Further, the petitioner
does not say that he is not conversant with English language and that
he did not understand the contents of the said documents when the
same were handed over to him or that he has had no opportunity
whatsoever to explain it to the detenu at the same time. Suffice it to
observe that the petitioner has not been able to substantiate the fact that
the grounds of detention were not communicated to the detenu soon
after he was detained on 20th July, 2011 or that he was unable to
understand the contents of the order of detention and grounds of
detention being in English and was, thus, denied opportunity to make
representation at the earliest. As a matter of fact, a detailed, elaborate
and comprehensive representation was made by the detenu as early as
on 8th August, 2011 itself. That representation was made without any
loss of time, which was obviously prepared by the detenu's advocate
on the basis of instructions given by him or his relatives. Accordingly,
the ground of challenge under consideration is devoid of merit.
55 233211
43. The other contention at the instance of Detenu Waghmare
is that no material was placed before the Detaining Authority to show
that the I.E. Code was arranged by the detenu. On the contrary, the
I.E. Code shows that the said Code was taken by Naeemuddin Saiyed
on or about 10th December, 2009 - much before the said Naeemuddin
Saiyed was introduced to the detenu by Asif Sidiqui.
Similarly, no material was placed before the Detaining Authority, from
which, it can be said that the detenu had arranged transport of the
goods to be exported from Surat to Mumbai and kept the said goods at
the warehouse. On this ground alone, the Detention Order is vitiated
and suffers from non-application of mind. The argument, though
attractive at the first blush, will have to be stated to be rejected.
44. This plea has been countered by the respondents. The
reply-affidavit of the Detaining Authority asserts that the fact so stated
56 233211
in the grounds is noticed from the statement of Saiyed J. Naeemuddin,
the exporter, recorded under Section 108 of the Customs Act, 1962 on
3rd December, 2010. He had told Detenu Waghmare to get the I.E.C.
The said Naeemuddin, in his further statement dated 1st December,
2010, has stated that Detenu Waghmare arranged transport of the
export goods from Surat to Mumbai and further to Shed No. 3 of D-
Node, JNPT. That fact was corroborated by Khalil Ahmed Rashid
Ahmed Kapadia, another accused in the case, in his statement under
Section 108 of the Customs Act. The Detaining Authority has referred
to other material such as statements of Detenu Dhakne dated 1st
December, 2010 and Ashutosh Rai dated 8th February, 2011 and 11th
February, 2011 and 31st March, 2011 to counter the suggestion that no
material was placed before the Detaining Authority, from which, it can
be said that the detenu had arranged for transport of the goods to be
exported from Surat to Mumbai and kept the said goods at a
warehouse.
45. Suffice it to observe that the fact that I.E. Code was not
placed before the Detaining Authority along with compilation of
documents cannot be the basis to assume that the Detaining Authority
57 233211
could not have arrived at the subjective satisfaction as recorded by her
on the basis of the material already produced before her, which would
go to show that the detenu was involved in the crime and had
propensity to indulge in prejudicial activities in future - considering the
over all view emerging from the material on record. The Detaining
Authority has explained that position in the reply-affidavit as well.
Somewhat similar argument is made at the instance of Detenu Dhakne.
We shall elaborate the legal position for rejecting this contention a little
later. For the same reasons, the argument under consideration will
have to be rejected. It is not a case of non-existent or not relevant
ground.
46. As no other ground is urged in Criminal Writ Petition
Nos. 2332 and 2333 of 2011, respectively, besides the ones referred to
above, both these petitions ought to fail.
Re : Additional grounds in the case of the detenu Dhakne :
47. That takes us to the additional ground taken in the third
petition. According to Detenu Dhakne, the Commissioner of Customs
had suspended the C.H.A. Licence of the detenu's Company on or
58 233211
about 22nd March, 2011. The copy of the said suspension order was
also sent to the Sponsoring Authority. However, the Sponsoring
Authority did not place the said order of suspending C.H.A. Licence of
the detenu's Company before the Detaining Authority. It was
incumbent upon the Detaining Authority to have considered the said
vital document before arriving at her subjective satisfaction. Besides,
the Detaining Authority ought to have furnished copy of the said vital
document to the detenu along with the Grounds of Detention, and in
absence of the said document, has arrived at the subjective satisfaction
which is nothing but sham and unreal. It is a case of non-application of
mind on the part of the Detaining Authority. This grievance is made
in Ground No. (iv) of the petition.
48. The Detaining Authority, in the reply-affidavit dated 27th
September, 2011, has countered the said ground in the following
words:-
"6. With reference to para 5(iv) (of the petition), I say that
the Petitioner's claim is not tenable regarding the suspension
of CHA licence of the detenu. The suspension order
annexed as Annexure 'D' to the petition specifically
mentions the grounds for suspension of the detenu's CHA
licence, wherein all his statements and the statements of his
employee Shri Bala B. Jadhav recorded under section 108 of
the Customs Act, 1962 wherein they had confessed about
fraud committed by them were considered by the authorities
for the suspension of the CHA licence. All the said
59 233211
statements were placed before me. Hence the argument that
copy of the said suspension order was not placed before me
does not hold good. Further the cancellation of CHA
licence of the detenu is not the criteria or parameter for his
on indulgence in smuggling activities in future. It is merely
one of the remedial measures taken for stopping the future
participation of the detenu in similar matters. Further the
detention of the detenu under COFEPOSA ACT, 1974, is
preventive measure only to prevent the detenu from
indulging in smuggling activities. It is the irresponsible
attitude of the detenu who as a bonafide CHA is bound by
the obligations as mentioned in the Customs House Agents
Regulations, 2004, which the detenu has failed to do and
therefore, it cannot be said that the detention order is
malafide and null and void."
49. The Sponsoring Authority, while dealing with the said
contention, has stated thus:-
"The detaining authority on the material facts available on
record and after satisfying herself with the documentary
presentation as clearly stated in the grounds of detention,
communicated to the detenu, as to how she arrived at the
decision that the detenu should be detained under the
provisions of the COFEPOSA Act. The petitioner's claim
is not tenable regarding the suspension of CHA licence of
the detenu. The suspension order annexed as Annexure D to
this petition, specifically mentions the grounds for
suspension of the detenu's CHA Licence, wherein all his
statements and the statements of his employee Shri. Bala B.
Jadhav recorded under Section 108 of the Customs Act 1962
wherein they had confessed about fraud committed by them
were considered by the authorities for the suspension of the
CHA licence. All the said statements were placed before the
detaining authority. Hence the argument that copy of the
said suspension order was not placed before the detaining
authority does not hold good. Further the cancellation of
CHA licence of the detenu is not the criteria for parameter
for non indulgence in smuggling activities in future. It is
merely one of the remedial measures taken for stopping the
future participation of the detenu in similar matters. Further
the detention of the detenu under COFEPOSA Act, 1974, is
preventive measure only to prevent the detenu from
60 233211
indulging in smuggling activities. It is the irresponsible
attitude of the detenu who as a bonafide CHA is bound by
the obligations as mentioned in the Customs House Agents
Regulations, 2004, which the detenu has failed to do. Hence
it cannot be said that the detaining authority has considered
piecemeal the documents placed before her. Therefore, it
cannot be said that the abovementioned Detention Order (is)
malafide, ab-initio, null and void."
50. In the first place, the fact that the C.H.A. Licence of the
detenu's Company has been suspended cannot be the basis to doubt the
subjective satisfaction reached by the Detaining Authority, in the fact
situation of the present case, that the detenu may indulge in similar
prejudicial activities in future and to prevent him from doing so, it was
necessary to detain him. This subjective satisfaction has been recorded
in the backdrop that the acts or omission resulting in the offence were
the outcome of the activity undertaken in an organised manner in
which the detenu was associated. If it is a case of organised activity,
merely because the CHA licence of the detenu's Company has been
suspended may not dissuade, much less, prevent the detenu from
indulging in the same prejudicial activities successively by taking help
of others who were involved in smuggling, whose identity was not
being disclosed by the detenu.
61 233211
51. We are in complete agreement with the stand taken by the
respondents that the action of preventive detention is only a measure to
prevent the detenu from indulging in prejudicial activities in future.
The fact that the order of the Commissioner was not placed before the
Detaining Authority or, for that matter, supplied to the detenu along
with the Grounds of Detention, in our opinion, does not take the matter
any further. Indubitably, the justness of the subjective satisfaction of
the Detaining Authority ought to be tested on the basis of the material
placed before her. That subjective satisfaction cannot be doubted on
account of non inclusion of order suspending C.H.A. Licence of
detenu's Company. Reliance was placed on the observation of
the Apex Court in the case of Gimik Piotr (supra). In that case, the
passport of the detenu was already impounded when order of detention
was passed against him under Section 3(1)(i) of Act. In this backdrop,
it was argued on behalf of the detenu that the Detaining Authority
having failed to examine the issue as to whether the detenu would be
able to continue his prejudicial activities of smuggling goods, and it
was not open to the Detaining Authority to speculate that the detenu
would continue to indulge in the prejudicial activities even in absence
of a passport. In our opinion, reliance placed on the above decision is
inapposite to the fact situation of the present case. In this case, as noted
62 233211
earlier, the detenu was found to be involved in commission of
prejudicial activities in an organised manner along with others who
were involved in smuggling goods. Obviously, the subjective
satisfaction recorded by the Detaining Authority, is founded on the
material placed before her that the detenu was involved in the
commission of prejudicial activities and would continue with the
prejudicial activities by taking help of others who were involved in
smuggling, whose identity has not been disclosed. In our opinion, the
principle stated in Abdul Sathar Ibrahim Manik v. Union of India
and others reported in (1992) 1 SCC 1 can be usefully pressed into
service to the fact situation of the present case. The learned A.P.P. has
rightly placed reliance on the decision of the Apex Court in the case of
Madan Lal Anand vs. Union of India & Ors. Reported in AIR 1990
SC 176, in particular, paragraphs 27 and 28 thereof. The argument of
the detenu was that the Detaining Authority had relied upon and
referred to the confessional statement of the detenu as recorded by the
Collector under Section 108 of the Customs Act, in the grounds of
detention, the retraction made by detenu was not placed before the
Detaining Authority for his consideration. If that document was to be
considered, the subjective satisfaction of the Detaining Authority could
have been in favour of the detenu and against making an order of
63 233211
detention. Notably, the Court proceeded to hold that it is desirable to
note that any retraction made should also be placed before the
Detaining Authority. But, that does not mean that if any such retraction
is not placed before the Detaining Authority, the order of detention
would become invalid. The Court while restating the said legal
position placed reliance on the decision of the Apex Court in the case
of Prakash Chandra Mehta vs. Commissioner and Secretary,
Government of Kerala reported in (1985) Suppl.SCC 144. Further,
while considering the facts of that case, the Court opined that the order
of detention was saved by virtue of Section 5A of the Act as noticed
from the discussion in Paragraph 29 thereof.
52. Even the other argument of detenu Dhakne that there was no
material on record to even remotely indicate that the detenu had
indulged in any prejudicial activities even after the suspension of
licence and, for that reason, the Detaining Authority could not have
reached the subjective satisfaction that preventive detention was
imperative. It is not possible to countenance this submission. The
Detaining Authority, in the present case, has considered the statements
of all the accused recorded under Section 108 of the Customs Act, as
also other material which indicates that the prejudicial activity was
64 233211
conducted in organised manner and Detenu Dhakne was part of that
larger conspiracy, and has propensity to commit such offences in
future. For committing such organised prejudicial activity, existence or
non-existence of CHA licence can be no impediment if the person has
other means and resources to continue the activities. In other words,
there is no tangible reason to doubt the subjective satisfaction of the
Detaining Authority that the detenu has propensity to indulge in the
prejudicial activities in future.
53. The other additional ground on behalf of Detenu Dhakne
is about the delay in deciding representation by the Detaining Authority
and the State Government. This argument is canvassed on the basis of
the dates mentioned in the reply-affidavit filed by the Detaining
Authority and the Deputy Secretary of the State Government. In
paragraph 3 of the reply-affidavit of the Detaining Authority, it is
stated as follows:-
"3. I say that as the Detaining Authority I expeditiously
considered the representation of the detenu which was made
on 23-08-2011. The said representation was received in my
office on 24-08-2011 late in the evening. Thereafter, by
letter dated 26-08-2011 the parawise comments were called
from the Sponsoring Authority. This letter dated
26-08-2011 was sent through ordinary post to the
Sponsoring Authority. I say that on 23-09-2011 the
parawise comments were received in my office. The
concerned Assistant submitted the file to the Under
65 233211
Secretary on 26-09-2011. I say that during the said period
there were holidays on 24-09-2011 and 25-09-2011."
54. In paragraph 5 of the reply-affidavit filed by the Deputy
Secretary of the State Government, it is stated as follows:-
"5. I say that the representation dated 23-08-2011 was
received in the office on 24-08-2011 late in the evening.
Thereafter, by letter dated 26-08-2011 the parawise
comments were called from the Sponsoring Authority. This
letter dated 26-08-2011 was sent through ordinary post to
the Sponsoring Authority. I say that on 23-09-2011 the
parawise comments were received in the office. The
concerned Assistant submitted the file to the Under
Secretary on 26-09-2011. I say that during the said period
there were holidays on 24-09-2011 and 25-09-2011."
55. According to Detenu Dhakne, it is a clear case of
unexplained delay in deciding the representation. While considering
similar grievance in the case of other two petitioners, we not only
placed reliance on the reply-affidavits filed by the respondents but also
various notings made in the original record produced before us. In
addition to the dates referred to in the two reply-affidavits filed on
behalf of the respondents, it may be useful to refer to the notings in the
file of the Home Department. The representation was made by Detenu
Dhakne dated 23rd August, 2011. The grievance regarding delay in
deciding representation is essentially in respect of period between 26th
66 233211
August, 2011 till 23rd September, 2011. The representation was
received in office in Mantralaya on 26th August, 2011. Para-wise
comments thereon were invited from the Sponsoring Authority. That
communication was sent to the Sponsoring Authority on 26th August,
2011. The para-wise comments were received from the Sponsoring
Authority on 23rd September, 2011. The other relevant events as
unfolded during the intervening period, can be culled out from the
notings on the file, can be stated as under.
56. The representation was received in the Office of the Joint
Commissioner on 2nd September, 2011. We have already dealt with the
same argument that the officers from Mantralaya should not have sent
communication to the Sponsoring Authority, inviting his para-wise
comments by "ordinary post". For the same reason, the explanation
given by the respondents for the time between 26th August, 2011 till 2nd
September, 2011 will have to be accepted. It is also noticed that 3rd and
4th September, 2011 were holidays. The representation was then
received in COFEPOSA Section on 5th September, 2011. The para-
wise comments-preparation was done between 6th and 7th September,
2011. The file was then put up before the Joint Commissioner for
approval on 8th September, 2011. The discussion on the said file took
67 233211
place on 9th September, 2011. Once again, 10th and 11th September,
2011 were holidays. The discussion was again held on 12th September,
2011 and the final para-wise comments were approved and signed by
the Joint Commissioner on 13th September, 2011. The para-wise
comments were received on 14th September, 2011 and the Detaining
Authority decided the representation on 27th September, 2011. The
explanation as to why the representation was not decided by the
Detaining Authority soon after its receipt on 14th September, 2011 has
been offered. In that, in addition to the representation dated 23rd
August, 2011, the detenu had sent second representation on 8th
September, 2011, when his first representation was still being
processed. That was received on 12th September, 2011. The para-wise
comments were called in respect of that representation from the
Sponsoring Authority on 13th September, 2011. The para-wise
comments on the second representation were received in the office of
the Detaining Authority on 23rd September, 2011. 24th and 25th
September, 2011 were public holidays, being fourth Saturday and
Sunday, respectively. The said comments with the endorsement by the
Assistant were submitted before the Under Secretary on 26th
September, 2011. The Detaining Authority eventually considered both
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the representations on 27th September, 2011 and immediately
communicated her decision to the detenu.
57. It is, thus, noticed that the first representation was kept pending
in the office of the Detaining Authority between 14th till 23rd
September, 2011, as the para-wise comments of the Sponsoring
Authority on the second representation were still awaited. The
Detaining Authority cannot be blamed for that situation, as it could not
have dealt with the representations of the same detenu in piecemeal
manner. The fact that the detenu chose to make successive
representations to the same Authority does not mean that each
representation should have proceeded independently. It was open to
the Appropriate Authority - in particular, the Detaining Authority - to
consider both the representations together and pass a common order
thereon. If at all, it is the detenu who should be blamed for making
successive representations. He cannot be permitted to take advantage
of his own wrong, and claim that his continued detention was illegal
and unconstitutional because of delay in deciding his first
representation. As regards the processing of second representation,
there is no manner of doubt that it has been done with utmost
expedition and the final decision is taken by the Detaining Authority on
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27th September, 2011 after processing the file through proper channel.
As regards the first representation, there is no reason to think that it is a
case of inaction or callousness till 14th September, 2011. Thereafter,
the Detaining Authority chose to keep the said representation pending
for being decided together with the second representation made by the
same detenu. It is not a case of the first representation having
remained unattended between 14th till 23rd September, 2011 without a
just cause, as such. The first representation was required to be kept
aside to be decided along with the second representation, after the para-
wise comments thereon were received from the Sponsoring Authority.
As soon as the para-wise comments were received from the Sponsoring
Authority on 23rd September, 2011, the same was processed with
utmost despatch in the office of the Detaining Authority and final
decision thereon was taken on 27th September, 2011. Taking over all
view of the matter, therefore, it is not a case of delay in deciding
representation by the Detaining Authority, as is sought to be contended.
58. Since no other ground has been urged in the petition filed
on behalf of Detenu Dhakne, even that petition should fail, being
devoid of merits.
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59. Accordingly, all the three petitions are dismissed.
60. The original records of the Sponsoring Authority as well
as the Detaining Authority in all the three cases be returned to the
Public Prosecutor forthwith.
P.D. KODE, J. A.M. KHANWILKAR, J.
