Delhi High Court

Davinder Singh Chadha vs Uoi & Anr on 29 May, 2015

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+                        WP (CRL) 615/2015
                                  Reserved on        : 25th May, 2015
%                                 Date of decision   : 29th May, 2015

        DAVINDER SINGH CHADHA                     ..... Petitioner
                     Through: Mr.Pradeep Jain, Mr. Shubhankar
                     Jha and Mr. Ashish Batra, Advocates.

                         versus

        UOI & ANR                                    ..... Respondent

Through: Mr. Sanjay Jain, ASG with Mr. Vivek Goyal, CGSC, Ms. Shreya Sinha, Ms. Bani Dikshit and Ms. Rahul Jain, Advocates for UOI.

Mr. S.K. Dubey and Ms. Sushma Yadav, Advocates for DRI.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE ASHUTOSH KUMAR

SANJIV KHANNA, J:

Appellant Davinder Singh Chadha has challenged preventive

detention of his son Rupinder Singh Chadha. The impugned order

dated 16th April, 2014, was passed by the Government of India under

the Conservation of Foreign Exchange and Prevention of Smuggling

Activities Act, 1974 (for short „COFEPOSA‟) with a view to prevent

Rupinder Singh Chadha (detenue, for short) from abetting smuggling

activities. The detenue had earlier challenged the said order at pre-

detenue stage in WP(Crl.) No. 1630/2014, but the petition was

withdrawn as per order dated 13th August, 2014. The detenue was

detained on 26th February, 2015. The grounds of detention and relied-

upon documents were thereafter served upon him.

2. As per the respondents, Directorate of Revenue Intelligence

(CDRI, for short), on the basis of information received, had inspected a

consignment of A-4 copier paper imported vide bill of entry No.

9865457 dated 16th April, 2013 by M/s. AMP Enterprises, WZ-25D/2,

Shop No.3, Ground Floor, Krishna Park, Tilak Nagar, New Delhi-

110018. M/s. Prahlad Singh, Custom House Agent (CHA), had

applied for clearance and had filed the bill of entry online through the

office computer of the CHA. On examination, 1504 cylinders of 13.6

kgs each of refrigerant gas (HC-22), were found concealed behind the

cartons of copier papers. The gas cylinders along with the copier

papers were seized under Section 110 of the Customs Act, 1962, (Act,

for short) vide punchnama dated 20th April, 2013. During

investigation, statements of Dinesh Kumar Badopalia, CHA, Manish

Jalhotra and the detenue were recorded under Section 108 of the Act.

Manish Jalhotra, it is alleged, is the pivot who is indulging in

smuggling of R-22 refrigerant gases into India. Investigation had led

to the recovery of CCTV footage from the McDonalds restaurant at

Kamla Nagar, in which Dinesh Kumar Badopalia, Manish Jalhotra and

the detenue could be seen together. The CCTV footage is dated 12th

April, 2013 and does not have audio or voice recording. One Sandip

Kumar Moria was also present in the said meeting. It is alleged that

Manish Jalhotra, in collusion with the detenue, had introduced and

impersonated as Vikas to Dinesh Kumar Badopalia. The detenue,

himself a CHA licence holder, had kept himself out and had remained

in the background. The detenue and Manish Jalhotra had intentionally

and deliberately hired services of CHA Dinesh Kumar Badopalia to

clear the said consignment, to avoid trouble and detection.

3. On 13th June, 2013, a search was conducted at the residential

premises of the detenue at A-2, 36/52, West Punjabi Bagh, New Delhi.

As per the panchnama, nothing incriminating was found. On the same

date i.e. 13th June, 2013, the detenue had presented himself before the

DRI officers at 11.00 A.M. and surrendered his mobile phones and

laptop. The seizure memo records that the phones were required for

forensic analysis of call logs, phone book, messages and files and to

generate and take print-outs. One Mohit Kumar, cyber forensic expert

was also present. The printed reports were signed on the same date by

the detenue. The phones were thereafter put in a paper envelope, sealed

and retained by the DRI. After about 1 ½ months, on 30 th July, 2013,

one phone was de-sealed in presence of the detenue and all types of

data were copied in four DVDs along with their hash values. Three

DVDs were sealed in three separate envelopes and one DVD was kept

open for investigation purposes. Two audio files marked Audio-1 and

Audio-2 found in the phone, were downloaded and copied in another

set of four CDs. Three CDs with audio files 1 and 2 were kept and

sealed in separate envelopes and one CD was kept open for

investigation. The phone was thereafter re-sealed.

4. The respondents rely upon the audio file-2, which it is claimed,

contains audio recording of a conversation between the detenue and

Chandan Kumar Jain, Additional Commissioner of Customs,

Tughlakabad, Delhi. The said Chandan Kumar Jain has been

suspended and is facing departmental proceedings. However, the

COFEPOSA has not been invoked against Chandan Kumar Jain. The

respondents primarily rely on the recorded conversation in the audio

file-2, purportedly retrieved from the mobile phone of the detenue, to

prove and establish deep-rooted and inveterate involvement of the

detenue in the smuggling of R-22 gas cylinders into India. The voice

sample of the detenue as well as Shri Chandan Kumar Jain were

recorded. Voice sample of the detenue were recorded on 5th August,

2013 and 7th August, 2013. In the statement recorded on 5th August,

2013, Rupinder Singh Chadha, after hearing the audio CD, had

professed that he did not recognize voices of the persons in

conversation. Subsequent statement of the detenue was recorded on

7th August, 2013. Thereafter, the detenue stopped appearing in

response to the summons.

5. The detention order records that the detenue was involved and

was deliberately abetting smuggling to commit fraud and for personal

gains. Considering the nature and gravity of the offence and the

planned manner in which the detenue had engaged himself, there was a

potential and propensity that he would engage himself in prejudicial

activity of abetment in smuggling in future also, unless he was

checked. Thus, an order of detention was justified. As noticed above,

the detention order is dated 16th April, 2014 and was served on the

detenue on 26th February, 2015. It does appear that the detenue

avoided service of the said order.

6. The petitioner has raised the following contentions challenging

the detention order:-

(i) There is inexplicable and enigmatic long delay in passing of the

detention order. The consignment was seized in April, 2013 and

premises of the detenue were searched on 13th June, 2013. The order

of detention was passed after 10 months on 16th April, 2014.

(ii) Detenue has not been supplied CD of the CCTV video footage of

the McDonalds restaurant, Kamla Nagar.

(iii) The forensic experts have not confirmed that the detenue could be

heard in the incriminating and inculpatory conversation in audio file 2.

(iv) Voice samples of the detenue and Chandan Kumar Jain do not

form part of the relied-upon documents. Without examining the voice

samples, the detaining authority should not have passed the detention

order.

(v) Detenue has not been supplied the audio file/CD relied upon by the

detaining authority. Inspite of written request of the detenue, the audio

file has not been made available and played.

(vi) The detention order is bad for the detaining authority‟s subjective

satisfaction is vitiated and erroneous factually. Further, the detaining

authority has failed to notice that violation of provisions of the Act i.e.

the Customs Act, is a bailable offence.

(vii) There has been violation of Section 3 of COFEPOSA and Article

22 (5) of the Constitution of India, as the respondents have failed to

supply page nos. 102 to 111 and pages 158 to 279 of the relied-upon

documents. Similarly, page No.83 and internal page Nos. 16 to 19 and

46 to 55 have not been supplied.

7. We record that the grounds (ii), (vi) and (vii) are not meritorious

and do not require detailed discussion. There is due application of

mind by the detaining authority. Factual matrix and the conclusion

reached are a matter of subjective satisfaction and not directly a matter

for the writ court to re-examine and adjudicate. Relevant snap-shots of

the CCTV footage have been provided. Failure to furnish CD of the

CCTV footage has not caused or resulted in prejudice. Ground (vii)

does not have any substance as relied-upon documents have been

supplied. It is not shown or indicated that the pages referred, though

not relied upon, are relevant and material.

8. However, ground (i) and grounds (iii) to (iv) (collectively) are a

matter of concern and require detailed adjudication. Thus, the two

aspects which require consideration are; (i) whether there is an

unreasonable and unexplained delay in passing of the detention order,

which breaks the live-link between the illegal activities and the

detention order to prevent the detenue from indulging in illegal

activities in the immediate future, (ii) the second issue relates to the

failure of the respondents to provide audio recording of the alleged

conversation between the detenue and Chandan Kumar Jain.

9. On the first contention, undisputedly the consignment was

seized on 20th April, 2013. But in the facts of the present case, the

date of seizure of consignment, in our opinion, should not be treated as

the starting point. In the present case, the detenue had remained in the

background. Subsequent investigation as per the respondents, revealed

his involvement. Search was conducted at the residential premises of

the detenue on 13th June, 2013 and on the same day, his phone was

also seized. The respondents learnt and became luminously aware of

the detenue‟s involvement after the audio file No. 2 was purportedly

is dated 16th April, 2014. There is a time-gap of about 8 ½ months

between 30th July, 2013 and the detention order dated 16th April,

2014.

10. The legal position is and mandates that the detention order

should not be passed relying upon stale acts having no live link at

present. This would, in terms, have reference to the progress of

investigation unearthing the act(s), involvement of the person and the

live-link and connection between the "act(s)", the person and the order

of preventive detention. Undue delay, when established, would snap

the live-link between the order of detention and prejudicial activity.

Delay would also throw a considerable doubt on the genuineness of the

subjective satisfaction of the detaining authority, leading to a

legitimate inference that the detaining authority was not really and

genuinely satisfied regarding the necessity to detain the person, with a

view to prevent him from acting in a prejudicial manner. However, to

show and establish involvement, material and evidence has to be

collected before a detention order is passed. Preventive detention order

cannot be passed in haste and hurry and without cogent and reliable

material, for otherwise, the detention order would be questioned on the

ground that the investigation was incomplete or inchoate to implicate

and condemn the detenue. Further, the detaining authority must have

sufficient and adequate time to examine the evidence and statements,

have response to their queries and apply their mind. There have been

cases, where a delay of 11 months in passing the detention order, it has

been held, would not vitiate the detention order.

11. Authorities on the issue opine that if the delay is satisfactorily

explained, the detention order should not be quashed, but where the

delay is unexplained, opposite consequences would follow (See Licil

Antony v. State of Kerala and Anr., (2014) 11 SCC 326). In Abdul

Nasar Adam Ismail v. State of Maharashtra and Ors. (2013) 4 SCC

435, it was observed that a detaining authority is required to state what

steps were taken and how the proposal submitted by the sponsoring

authority was processed till the detention order was passed.

Reasonable time is not inflexible time and all the factors including any

attempt to prevent and stall passing of the said orders, must be taken

into account. Reference can also be made to the decisions of the

Supreme Court in Abdul Salam @ Thiyyan v. Union of India and Ors.

AIR 1990 SC 1446; Rajendra Kumar Natvarlal Shah v. State of

Gujarat & Ors. [1988] 3 SCC 153 and Hemlata Kantilal Shah v. State

of Maharashtra and Anr. AIR 1982 SC 8.

12. In the counter-affidavit filed by the respondents dated 20th

April, 2015, no attempt or efforts were made to explain when the

investigation against the detenue was completed, when the proposal

was sent and how the said proposal was dealt with by the detaining

authority. Case-law on the subject has been relied upon. On 21th May,

2015, our attention was drawn to a table (Annexure R-1) enclosed with

the affidavit. We do not approve and cannot accept that this is a valid

and good way to explain "live link", when allegations are made

contending unreasonable and unexplained delay. Such contentions

when made and when factually there is a time-gap, the assertion should

be replied and answered on oath in an affidavit, by stating the relevant

facts.

13. In these circumstances, we had adjourned the writ petition, to

enable the respondents to file an affidavit. The respondents have

placed on record an additional affidavit dated 25th May, 2015. The said

affidavit on the question of delay reads:-

"3. I say that the explanations on the issues are as under:

(i) That on 18.11.2013, the proposal for the detention of the petitioner‟s son, Shri Rupinder Singh Chadha, and one more person was initiated by the sponsoring authority i.e. DRI Headquarters. The said proposal was received in the Central Economic Intelligence Bureau on 19.11.2013.

(ii) That on 26.11.2013, the Central Screening Committee held its meeting at New Delhi for the consideration of the proposal for preventive detention. In this meeting, Central Screening Committee considered two proposals including the present which concerns Sh. Rupinder Singh Chadha. The voluminous records were considered by the Screening Committee.

(iii) That the Screening Committee had asked for certain relevant documents in respect of both these proposals.

(iv) The aforesaid documents were collected from the sponsoring authority and were placed before the Members of the Screening Committee.

(v) That on 09.12.2013, the Screening Committee granted approval to the proposals for the preventive detention which included Sh. Rupinder Singh Chadha under the COFEPOSA Act.

(vi) In the meantime, a letter dated 05.12.2013 addressed to the Hon'ble Finance Minister with a copy of the Joint Secretary (COFEPOSA) was received in the office of Central Economic Intelligence Bureau on 09.12.2013.

(vii) The Joint Secretary (COFEPOSA) received the Minutes of the Screening Committee with regard to the approval of the proposal for the preventive detention of Sh. Rupinder Singh Chadha.

(viii) That on 09.12.2013, the COFEPOSA unit informed the Sponsoring Authority in respect of the grant of approval of the proposal by the Screening Committee.

(ix) That on 10.12.2013, the Joint Secretary (COFEPOSA) asked for the detailed comments on the representation dated 05.12.2013 (received on 09.12.2013) of Sh. Rupinder Singh Chadha.

(x) That Joint Secretary (COFEPOSA) in the meantime was also occupied in processing other proposals for preventive detention and issued three (03) detention orders on 10.12.2013.

(xi) In the meantime, the Joint Secretary (COFEPOSA) started examining the proposal and documents in respect of the detention proposal of Sh. Rupinder Singh Chadha and whereas the additional documents in respect to the proposal for detention called for from the Sponsoring Authority were sent on the same day i.e. on 17.12.2013.

(xii) On scrutiny of the documents, it was felt that certain more documents are required from the Sponsoring Authority and therefore, vide E-mail dated 24.12.2013, certain clarifications/ documents were called for from the Sponsoring Authority.

(xiii) In response to the letter dated 10.12.2013, the Sponsoring Authority sent the detailed comments on the representation dated 05.12.2013 (received on 09.12.2013) on 26.12.2013.

(xiv) That in response to the E-mail dated 24.12.2013, the Sponsoring Authority submitted the full details vide letter dated 31.12.2013. The Joint Secretary (COFEPOSA) examined the said documents and vide letter dated 07.01.2014, called further details from the Sponsoring Authority.

(xv) That since Sh. Rupinder Singh Chadha had submitted an additional representation dated 01.01.2014 was received on 06.01.2014 in the COFEPOSA Unit, the Joint Secretary (COFEPOSA) asked the comments on the said representation from the Sponsoring Authority.

(xvi) That the Sponsoring Authority furnished its comments on the aforesaid second representation addressed to Joint Secretary (COFEPOSA) vide letter dated 13.01.2014 received in the COFEPOSA Unit on 15.01.2014.

(xvii) Since the proposal contained various documents relating to the court proceedings, therefore, the Joint Secretary

(COFEPOSA) asked for the further development in regard to the court proceedings subsequent to the proposal. (xviii) The sponsoring Authority furnished the up-to-date record of the Court proceedings on 27.01.2014. During this period, the Joint Secretary (COFEPOSA) has six more proposals for consideration (duly approved by the Screening Committee) for preventive detention. Therefore, the Joint Secretary had in her hand six other proposals for the detention order containing voluminous records. The Detaining Authority has completed her scrutiny in respect of the other three detention orders and have issued detention order in all three proposals for preventive detention 04.02.2014 and three others on 18.02.2014.The Joint Secretary (COFEPOSA) upon scrutiny of those documents (received in the proposal of Sh. Rupinder Singh Chadha & one other) asked for further details from the Sponsoring Authority vide letter dated 19.02.2014. The Sponsoring Authority forwarded the details sought for on the same day to the Joint Secretary (COFEPOSA).

(xix) It is worthwhile to mention that the Assistant Director General (ADG), COFEPOSA, attending to the proposal was required to attend day-to-day hearing in another matter in the Hon'ble High Court of Punjab & Haryana at Chandigarh from 25th February, 2014 to 27.02.2014 and then after on 11/12th March 2014.

(xx) That the Joint Secretary (COFEPOSA) has considered the entire material and sought for additional details on 12.03.2014. (xxi) That vide E-mail dated 19.03.2014 additional details were called from the Sponsoring Authority.

(xxii) That in response to E-mail dated 19.03.2012, the details were submitted by the Sponsoring Authority on 03.04.2014 (xxiii) The Joint Secretary (COFEPOSA) has considered those documents received on 03.04.2014 and had asked additional details on 09.04.2014' and 11.04.2014 in view of the information emerged from those new set of documents received from the Sponsoring Authority.

(xxiv) In response to the said communications dated 09.04.2014 & 11.04.2014, the Sponsoring Authority furnished the details which were received in the COFEPOSA Unit on 15.04.2014. The Detaining Authority considered those materials afresh on 146.04.2014, the detention order against Shri Rupinder Singh Chadha was issued."

14. A reading of the aforesaid paragraphs would indicate that the

sponsoring authority had sent their proposal on 18th November, 2013.

For the period prior to 18th November, 2013, no explanation has been

samples were also taken on 5th and 7th August, 2013. The respondents

state that the detenue had failed to appear in the proceedings inspite of

service of notice in response to the summons, on or after 12th

September, 2013. The central forensic laboratory, by letter dated 26th

September, 2013, had opined and expressed their inability to ascertain

and submit a report, since the specimen voice sample was not of the

same text as the questioned voice recording. The respondents obtained

the voice sample of Chandan Kumar Jain on 29th November, 2013.

The detenue failed to respond to the summons and therefore, did not

provide his voice sample of the same text. We have noted these facts

to observe that the delay can be explained, as the investigating agency

was hoping that the detenue would cooperate and furnish his voice

sample in the same text. However, it had become clear by November,

2013, that the detenue was not ready and willing to give voice samples

of the same text for the purposes of comparison. Delay post 18th

November, 2013 has been explained with reference to correspondence

exchanged and over-burden on account of work. The central screening

committee had asked for specific documents, which were furnished on

26th November, 2013. The screening committee approved the proposal

on 9th December, 2013. Thereafter, the Joint Secretary, COFEPOSA

asked for comments on a representation made on behalf of the detenue

vide letter dated 10th December, 2013. Detaining authority vide e-mail

dated 24th December, 2013, had asked for documents from the

sponsoring authority. Clarifications were also sought. Clarifications

and response to the representation dated 10 th December, 2013 were

furnished after more than 15 days on 26th December, 2013. Response

to the e-mail was furnished on 31st December, 2013. These were

examined by the Joint Secretary of COFEPOSA on 7 th January, 2014.

In the meanwhile, the detenue had made an additional representation

dated 1st January, 2014, which was received in the COFEPOSA unit on

6th January, 2014, and comments were asked for and received on 15th

January, 2014. Up-to-date court proceeding record was submitted to

the detaining authority on 27th January, 2014. Thereafter, the file in

question was not examined till 12th March, 2014. There is thus, a gap

of nearly 55 days from 15th January to 12th March, 2014. The reason

given is pre-occupation and over-burden, as the detaining authority had

to examine six other cases, in which orders were passed on 4th

February, 2014 and 18th February, 2014. Secondly, court proceedings

in another case were fixed from 25th February, 2014 to 27th February,

2014. We do not think that the time-gap has been adequately and

properly explained, but the time gap is not unduly long and prolonged.

Thereafter, the Joint Secretary, COFEPOSA felt that more material and

details were required as per the noting dated 12th March, 2014. E-mail

in this regard was written after a delay of 7 days on 19th March, 2014.

The details were submitted after about 14 days on 3rd April, 2014.

Additional details were asked for vide two letters dated 9 th April, 2014

and 11th April, 2014. These were furnished on 15th April, 2014 and,

thereafter, the detention order was passed on 16th April, 2014.

15. A reading of the aforesaid dates, indicates and reflects that the

urgency and promptness required was somewhat missing and absent.

The proposal was processed and dealt indolently with languid

approach. However, in light of the pronouncements and legal

ratiocination and the time-gap, if we exclude the period for which there

is an adequate explanation, the petitioner would not succeed on this

ground. It is difficult to hold that the live link had broken and had

come apart. It is the second issue, which tilts the balance.

16. On the second issue, we agree with the petitioner that the audio

file is the edifice and the core of the detention order, as it implicates

and connects the detenue with the consignment in question and to

what extent and how the detenue had taken help of the said Chandan

Kumar Jain. The said audio file was never furnished to the detenue.

What has been furnished and given to the detenue is the free transcript

of the recorded conversation. A copy of the free transcript was handed

over to us by the Additional Solicitor General in the Court. It consists

of about 40 pages. On a reading of the said conversation, it is apparent

that it is an audio recording of a conversation between two persons

sitting in an office or a room. It does not appear to be a recording of a

telephonic conversation. The transcript refers to earlier telephonic

conversations, which the one of the voices claims were tapped. If there

was any tapped conversation, the same has not been brought on record

and has not been relied by the sponsoring or the detaining authority.

The free transcript of the recorded conversation in the audio file is a

relied upon document. The detaining authority in the detention order

has stated:-

"30.1 Shri Rupinder Singh Chadha, i.e. you, was again summoned vide summon dated 25.07.2013 issued under Section 108 of the Customs Act, 1962 for your appearance on 29.07.2013. However, you appeared in the DRI office on 30.07.2013. Shri Rupinder Singh Chaddha, i.e. you, was issued a fresh summons dated 30.07.2013 and forensic examination of your mobile phone (i-phone 5), which was surrendered by you during your statement recorded on 13.06.2013, was conducted by a forensic expert, vide Record of Proceedings dated 30.07.2013. During record of proceedings dated 30.07.2013, Shri Rupinder Singh Chadha, i.e. you, was introduced to Shri Manish Kumar, Cyber forensic expert and was also explained about the proceedings of forensic examination to be conducted. Thereafter, the seal of the paper envelope in which the said i- phone-5 was sealed on 13.06.2013 was opened in the presence of Rupinder Singh Chadha, i.e. you and the said i-phone-5 was connected with the Forensic Work station by the Cyber expert and all types of data contained in the said phone were copied into four DVDs along with their hash values. Out of the said four DVDs, three DVD's were sealed in three separate paper envelopes on which Shri Rupinder Singh Chadha, i.e. you, DRI officer and Cyber expert put their dated signatures and one DVD was kept open for investigation purpose. Two audio files found in the said i-phone-5 were also separately copied (along with their hash values) in four sets of separate CDs each. The said two audio files, bearing nos. 20130511095056 and 20130521002100, were named and marked as Audio 1 and Audio 2 respectively. Out of the said four sets of CDs of the said audio files, three sets of CDs containing copied data were sealed in three sets of separate paper envelopes on which Shri Rupinder Singh Chadha, i.e. you, DRI officer and Cyber expert put their dated signature and one set of each CD was kept open for

investigation purpose. T he i-phone 5 was then re-sealed in a paper envelope in the presence of Shri Rupinder Singh, i.e. you, DRI officer and Cyber expert who put their dated signature on the same.

30.2 Shri Rupinder Singh Chadha, i.e. you, was again summoned in the DRI office vide summons dated 30.07.2013 for appearance on 01.08.2013. However, you did not appear and sent a letter dated 31.07.2013 stating therein that you had appeared on 30.07.2013 to tender your statement despite your indifferent health; that the tension had further aggravated your illness and as such you had been advised rest for one week. You requested for postponement of your appearance to some other date after one week.

45. The aforesaid voice samples of Shri Rupinder Singh Chadha, i.e. you, taken on 05.08.2013 and those of Shri Chandan Kumar Jain @ C. K. Jain taken on 07.08.2013 and 05.09.2013 were sent to CFSL, Chandigarh for forensic examination vide letter DRI F.No. 50D/28/2013-CI dated 20.09.2013. However, CFSL, Chandigarh vide letter no. CFSL/4445 dated 26.09.2013 informed that the case could not be accepted since the specimen voice sample was not in the same text of the questioned voice sample and that the case would be accepted after fulfilling the said deficiency. Subsequently Shri Rupinder Singh Chadha, i.e. you, did not join investigation therefore, your voice sample could not be taken again for sending to CFSL, Chandigarh. For non-honoring of summons a complaint was filed against Shri Rupinder Singh Chadha, i.e. you, in the Patiala House Court, for which next date of hearing is fixed as 19.04.2014.

46.1 DRI vide letter DRI F.No. 50D/28/2013-CI dated 23.10.2013, requested Import & General Commissionerate, New Custom House, New Delhi to direct Shri Chandan Kumar Jain @ C. K. Jain to appear before DRI on 29.10.2013. However, Shri Chandan Kumar Jain @ C. K. Jain did not appear on the said date. Vide letter dated 28.10.2013, Shri Chandan Kumar Jain @ C. K. Jain requested for the outcome of his voice samples given on earlier occasions and also asked for the provisions of law under which he was being directed to give his voice samples. In this regard, DRI replied to the Import & General Commissionerate, New Custom House, New Delhi vide letter DRI F.No. 50D/28/2013-CI dated 04.11.2013 and further requested for the presence of Shri Chandan Kumar Jain @ C. K. Jain before DRI on 12.11.2013. Additional Commissioner of Customs at Office of Commissioner (I&G) vide C. No. VIII(Vig.)I&G/30/08/2013 dated 05.11.2013 directed Shri Chandan Kumar Jain @ C. K. Jain to appear before DRI on 12.11.2013. Vide letter dated 11.11.2013, Shri Chandan Kumar Jain @ C. K. Jain submitted that he had been suffering from cough and cold which may prove an impediment in giving voice sample and requested to call him after 15 days for the purpose of giving voice sample. Accordingly, DRI vide letter DRI F.No.

50D/28/2013-CI dated 25.11.2013, requested Import & General Commissionerate, New Custom House, New Delhi, to direct Shri Chandan Kumar Jain @ C.K. Jain to appear before DRI on 29.11.2013.

46.2 Shri Chandan Kumar Jain @ C. K. Jain appeared before DR: on 29.11.2013 and his voice simple was taken by the forensic expert under Record of Proceedings dated 29.11.2013 and were sent to CFSL, Chandigarh for forensic examination vide DRI F. No. 50D/28/2013 --CI dated 30.12.2013. However, as informed vide enquiry report dated 19.03.2014 of IO, DM (Hqrs.), the matter is still under examination at CFSL. 46.3 Statement of Shri Chandan Kumar Jain @ C. K. Jain was again recorded under section 108 of the Customs Act, 1962 on 02.04.2014 in which he inter-alia stated that he knows Shri Deepak Jain-owner of M/s Arihant Logistics as he (Deepak Jain) is from his native place and have no other relation with him; that he does not recall person with name Shri Rakesh Kumar ('H'-card holder of M/s Arihant Logistics). On being shown mobile call records in respect of his mobile no. (9716488325), where there was call interaction with mobile no. 93128765754 (of Shri Rakesh Kumar), he stated that this was a solitary call of 8-seconds and he does not remember having spoken to Shri Rakesh on any issue; that he knows Shri Vipin yin as he hails from his nearby _village and happened to be actively involved in Shri Digambar Jain Mandir Samiti, Jarkhi (U.P.); that the conversation with him is in connection with the temple committee; that however he did not discuss any official matter with him (Shri Vipin Jain); that mobile no. 9716488325 had been borrowed by him from his sister for usage as his mobile had signaling issue and it was returned back to his sister. On being shown the statement dated 08.08.2013 of Shri Rakesh Kumar and asked to give comments on the same, he stated that Rakesh Kumar's entire statement concerning him is false and blatant lie and thus denied.

47. Meanwhile, the stipulated time limit of six months for issuance of Show Cause Notice in respect of goods seized by DRI on 20.04.2013 (unless extended further by the competent authority in terms of provisions of Section 110 (2) of the Customs Act, 1962) from the date of seizure/detention of the goods was getting over on 20.10.2013. Therefore, as per provisions of Section 110 of Customs Act, 1962, a Show Cause Notice bearing DRI F. No. 50D/28/2013-CI dated 04.10.2013 was issued to M/s AMP Enterprises and its proprietor Sh. Gulshan Singh, Shri Manish Jalhotra, Shri Rupinder Singh Chadha, i.e. you, Shri Sandeep Kumar, Shri Prahlad Singh and Shri Dinesh Kumar Badopalia, proposing therein as to why, in terms of the proviso to Sub¬section (2) of Section 110 of the Customs Act, 1962, the time limit for issuance of Show Cause Notice in respect of goods seized by DRI on 20.04.2013 should not be extended for a further period of 6 months i.e. upto 19.04.2014. Extension of time period by six months for issuance

of show cause notice in respect of goods sized by DRI office on 20.04.2013 was granted by the Commissioner of Customs, ICD, TKD vide Order in OriginalNo. 14/2013 issued vide C. No. III/ICD/TKD/ 5/SIIB/AMP Ent./88/2013/57539 dated 17.10.2013. On perusal of this Order-in-Original, it is seen that neither Shri Manish Jalhotra nor Shri Rupinder Singh Chadha, i.e. you, nor any other noticees represented their case on the dates of hearing (on 10th Oct 2013 & on 1.5th Oct 2013). Also no reply to the Show Cause Notice was filed by any of the noticees (Para-26 of the Order in Original No. 14/2013 issued vide C. No. VIII/ICD/TKD/5/SIIB/AMP Ent./88/2013/57539 dated 17.10.2013)."

17. In the counter-affidavit dated 20th April, 2015, it is observed that

various other evidences and statements have been placed before the

detaining authority, which proves the complicity of the detenue in the

offence. Forensic examination was sought to be done only to nail the

factually incorrect statements made by the detenue and to further

buttress the whole body of incriminating evidence against him. The

said audio file was recovered from his phone and he could not escape

from it‟s consequence merely by claiming that he did not recognize the

voices in the same. The grounds of evidence bring out the role of the

detenue and are not limited to the audio file. Further all documents

relied upon while passing the said detention order and framing the

grounds of detention were supplied. Therefore, the contention lacks

merit and deserves rejection. Reliance is placed upon a decision of the

Supreme Court in Radhakrishnan Prabhakaran v. State of T.N. 2009

SCC 170 to the effect that there is no legal requirement of every

document mentioned in the detention order, should invariably be

supplied to the detenue . What is important is that the copies of only

such documents as has been relied upon by the detaining authority for

reaching the satisfaction have to be supplied. In J. Abdul Hakeem v.

State of Tamil Nadu (2005) 7 SCC 70, the Supreme Court referred to

several earlier judgments and has held that the detenue has a right to

receive documents taken into consideration by the detaining authority

while formulating the terms of detention and non-supply of each and

every document does not provide a ground for setting aside the

detention order. The detenue, therefore, has a right to be supplied with

material documents, on which reliance is placed and not a document

referred to in the order, which is not relied upon for forming the

opinion or made the basis of passing of the detention order. The crux

of the matter lies in whether the detenue‟s right in making the

representation against the order of detention is hampered with. The last

sentence, it is apparent to us, is the principle or test to be applied. The

answer could vary from case to case, and accordingly, the final

outcome.

18. The detenue, as apparent from the above, had asked for the

audio recording of conversation allegedly between him and Chandan

Kumar Jain, as he wanted to hear the said conversation for making

effective representation. As is noted above, one of the aspect and issue

raised and arises for consideration is whether the detenue is a

participant in the conversation. The detenue had furnished his voice

samples but the CFSL report does not confirm that the audio file

includes voice of the detenue. The detenue had earlier in his statement

recorded on 5th August, 2013, recorded under Section 108 of the Act,

stated that he did not recognize voices of the persons in the recorded

conversation. The contention on behalf of the detenue is that the

purported conversation in the audio file was not downloaded or noticed

on 13th June, 2013. It was allegedly down-loaded only on 30th July,

2013 and the mobile phone had remained in the custody of the

respondents, in this period, though in a sealed paper envelope. It was

unlikely and irrational to expect and believe that the detenue would

record his conversation with Chandan Kumar Jain, after the

consignment had been seized. The recording served no purpose or

benefitted the detenue. No other audio file except "Gurbani" was

downloaded. These aspects, it is highlighted, could have been

effectively raised and elucidated, if the audio file was made available.

The free transcript cannot be equated with the audio file in the present

case, in terms of the questions and issues arising for consideration.

19. The another question which would arise, it is submitted, relates

to the downloading of data, which as noted above, was initially

30th July, 2013. It has been urged that the respondents or the technical

expert who was present on 13th June, 2013, would not have missed the

said file, when the data was initially down-loaded. In this context, it is

submitted that there was no reason and cause for the detenue to record

a conversation, highlighting the conversation itself mentions that the

telephone of the detenue and Chandan Kumar Jain was already tapped.

These facts could have been ascertained and incongruities highlighted

only on examining and hearing the audio file.

20. The detaining authority, it has been accepted by the respondents

during the arguments, had heard the audio file and also the sample

voice recording. It is therefore contended by the petitioner that

contrary to the pleadings, in the counter-affidavit dated 20th April,

2015 and the assertion in the detention order, the detaining authority,

for formation of opinion, had heard the two files to reach and form her

conclusion that the detenue was one of the two persons in the said

conversation. It is submitted that the assertion that the audio file and

voice sample were not the primary evidence is wrong and incorrect.

The audio files should have been provided.

21. We have referred to the said contentions on behalf of the

detenue only to highlight the submission made that failure to supply

the audio file of the conversation, in the facts of the present case,

would cause prejudice and mere supply of the free translation was not

sufficient for making weighty and effective representation. We find

merit in the said contention in the facts of the present case. The

detenue should have been supplied the audio file No.2 in order to make

an effective representation. This was possibly the most patent, crucial

and decisive material and evidence against the detenue. He had the

right to meet and challenge this evidence. That right and chance

should not have been denied. This would be contrary to equity and

law. The detenue has right to show and support his contention that

there was tampering and/or the conversation did not have his voice. He

should know what was heard by the detaining authority, before

formulating her opinion. In this context, it was submitted by the

petitioner that every recording on the phone need not have detenue‟s

voice. Free translation text would lose its connection with the detenue,

in case the detenue was not the person, who had conversed with

Chandan Kumar Jain or if there was interpolation or tampering. We at

this stage, note that as per the forensic report voice of Chandan Kumar

Jain is present in the said audio file. The stand and stance of the

detenue may be wrong, fallacious and farcical but the detenue has right

to raise contentions and meet the assertions against him by referring to

the evidence relied upon. Right to make representation is a precious

and preserved right. Final decision is the conclusion and termination

after examination of the representation.

22. Learned Additional Solicitor General has submitted that the

audio file was heard by the detenue on 5th August, 2013, and,

therefore, no prejudice is caused. We do not think this argument should

be accepted, as at that time, preventive detention order had not been

passed. The argument, in fact, accepts importance of the audio file and

it‟s relevance. It is not the case of the respondents that a copy of the

audio file was made available to the detenue at any time. Free

translation, we note, is a secondary evidence and not primary evidence.

The audio file is the primary evidence and in the facts of present case,

the contention raised is not with regard to the free text provided but the

question whether the free text is the true and correct and whether but

the detenue is a participant in the recorded conversation.

23. Recorded conversations or tape records of speeches are

documents as defined in Section 3 of the Evidence Act [see Ziyauddin

Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976) 2 SCC

17]. Audio and video tapes are considered and can be clinching and

authoritative evidence. They could be the primary evidence about an

event or any happening. In some cases, like the present case, they may

turn out to be the most crucial piece of evidence. However, the Courts,

before relying upon audio or video tapes, exercise caution as electronic

evidence are susceptible to tampering and alterations by transposition,

excision, etc. These may be difficult to detect and, therefore, care and

guardedness has to be exercised to rule out possibility of any kind of

tampering, alterations, etc. Standard of proof about its authenticity and

accuracy has to be more stringent as compared to documentary

evidence. In Tukaram S. Dighole Vs. Manikrao Shivaji Kokate,

(2010) 4 SCC 329, the Supreme Court while dealing with an election

petition has referred to the following case law on the subject:-

"24. In Yusufalli Esmail Nagree v. State of Maharashtra, this Court observed that since the tape-records are prone to tampering, the time, place and accuracy of the recording must be proved by a competent witness. It is necessary that such evidence must be received with caution. The court must be satisfied, beyond reasonable doubt that the record has not been tampered with.

25. In R. v. Maqsud Ali, it was said (QB p. 701 D-E) that it would be "wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded [are] properly identified.... Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case."

26. In Ziyauddin Burhanuddin Bukhari, relying on R. v. Maqsud Ali, a Bench of three Judges of this Court held that the tape- records of speeches were admissible in evidence on satisfying the following conditions:

"(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.

(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.

(c) The subject-matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act."

Similar conditions for admissibility of a tape-recorded statement were reiterated in Ram Singh v. Col. Ram Singh and recently in R.K. Anand v. Delhi High Court.

27. Tested on the touchstone of the tests and safeguards enumerated above, we are of the opinion that in the instant case the appellant has miserably failed to prove the authenticity of the cassette as well as the accuracy of the speeches purportedly made by the respondent. Admittedly, the appellant did not lead any evidence to prove that the cassette produced on record was a true reproduction of the original speeches by the respondent or his agent. On a careful consideration of the evidence and circumstances of the case, we are convinced that the appellant has failed to prove his case that the respondent was guilty of indulging in corrupt practices."

24. In R.K. Anand v. Delhi High Court, (2009) 8 SCC 106,

question of admissibility of electronically recorded and stored evidence

used in contempt proceedings had come up for consideration. In the

said decision, on the question of voice identification, reference was

made to the decision of the Supreme Court in Ram Singh Vs. Col.

Ram Sing, 1985 Supp SCC 61 and the following paragraph was

quoted:-

"32. Thus, so far as this Court is concerned the conditions for admissibility of a tape-recorded statement may be stated as follows:

(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.

(2) The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence--direct or circumstantial.

(3) Every possibility of tampering with or erasure of a part of a tape-recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.

(4) The statement must be relevant according to the rules of the Evidence Act.

(5) The recorded cassette must be carefully sealed and kept in a safe or official custody.

(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."

The above said decision also refers to R.V. Stevenson (1971)

1 Al ER 678, wherein it has been observed:-

"... Just as in the case of photographs in a criminal trial, the original unretouched negatives have to be retained in strict custody so in my view should original tape recordings. However one looks at it, whether, as counsel for the Crown argues, all the prosecution have to do on this issue is to establish a prima facie case, or whether, as counsel for the defendant Stevenson in particular, and counsel for the defendant Hulse joining with him, argues for the defence, the burden of establishing an original document is a criminal burden of proof beyond reasonable doubt, in the circumstances of this case it seems to me that the prosecution have failed to establish this particular type of evidence. Once the original is impugned and sufficient details as to certain peculiarities in the proffered evidence have been examined in court, and once the situation is reached that it is likely that the proffered evidence is not the original--is not the primary and best evidence--that seems to me to create a situation in which, whether on reasonable doubt or whether on a prima facie basis, the judge is left with no alternative but to reject the evidence. In this case on the facts as I have heard them such doubt does arise. That means that no one can hear this evidence and it is inadmissible."

25. In Vijay Ranglal Chorasiya v. State of Gujarat, (2014) 12 SCC

400, the Supreme Court relied upon identification of voice in the tape

recording machines set up by the police for surveillance. Reference in

this regard can be also made to a recent decision of the Supreme Court

in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, (2015)

3 SCC 123, wherein it has been observed:

"16. It is to be noted that in the first complaint filed by the second respondent, the de facto complainant, there is no allegation for any demand for bribe by the appellant. The allegation of demand is specifically against Accused 2 only. That allegation against the appellant is raised only subsequently. Be that as it may, the only basis for supporting the allegation is

the conversation that is said to be recorded by the voice recorder. The Directorate of Forensic Science Laboratories, State of Maharashtra vide Annexure B Report has stated that the conversation is not in audible condition and, hence, the same is not considered for spectrographic analysis. The learned counsel for the respondents submit that the conversation has been translated and the same has been verified by the panch witnesses. Admittedly, the panch witnesses have not heard the conversation, since they were not present in the room. As the voice recorder is itself not subjected to analysis, there is no point in placing reliance on the translated version. Without source, there is no authenticity for the translation. Source and authenticity are the two key factors for an electronic evidence, as held by this Court in Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473."

(emphasis supplied)

26. We have referred to these decisions which relate to contempt,

election, civil or criminal proceedings, for the reasons that they set out

and explain the importance of voice identification and prudence and

caution which has to be exercised when electronic recording is the

substratum of a case or a finding. We are not suggesting that the same

principles would apply and have to be followed when the detaining

authorities pass an order of preventive detention. The standards and

requirements are different and would vary according to the facts.

However, these judgments lucidly bring out the importance of voice

identification, source and authenticity of electronic evidence, even

when free translation is relied upon. It is not a substitute and does not

negate the significance and importance of the audio or video recording.

27. In view of the aforesaid discussion, we hold that there has been a

grave lapse and failure on the part of the respondents in not supplying

the audio recording of the conversation stated to be between the

detenue and Chander Kumar Jain. The detenue had specifically asked

and prayed that he wanted to hear the audio file. This failure has

caused prejudice and curtailed and repudiated the right of the detenue

to make effective representation. This being contrary to law, the writ

petition must succeed. Accordingly, we allow the present writ petition