Delhi High Court
Sanjay Agarwal vs Union Of India And Others on 27 August, 2018
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 23rd August 2018
Decided on: 27th August 2018
+ W.P. (CRL) 1971/2018 & Crl.M.A.12159/2018
SANJAY AGARWAL ..... Petitioner
Through: Mr. Vikram Chaudhri, Sr. Advocate,
with Mr. Raktim Gogoi, Mr. Harshit
Sethi, Mr. Kartikeya Singh,
Mr. R.P. Saini and Mr. Rishi Sehgal,
Advocates.
versus
UNION OF INDIA AND OTHERS ....Respondents
Through: Mr. Amit Mahajan, CGSC.
Mr. Satish Agarwala, Sr. Standing
Counsel for DRI.
+ W.P. (CRL) 1977/2018 & Crl.M.A.12179/2018
AJAY AGARWAL ..... Petitioner
Through: Mr. Vikram Chaudhri, Sr. Advocate,
with Mr. Raktim Gogoi, Mr. Harshit
Sethi, Mr. Kartikeya Singh,
Mr. R.P. Saini and Mr. Rishi Sehgal,
Advocates.
versus
UNION OF INDIA AND OTHERS ....Respondents
Through: Mr. Amit Mahajan, CGSC.
Mr. Satish Agarwala, Sr. Standing
Counsel for DRI.
CORAM: JUSTICE S. MURALIDHAR
JUSTICE VINOD GOEL
W.P. (Crl) Nos. 1971/2018 & 1977/2018 Page 1 of 21
JUDGMENT
Dr. S. Muralidhar, J.:
Introduction
1. These are two writ petitions under Article 226 of the Constitution of India
seeking the quashing of orders of preventive detention dated 1st June 2018
passed by the Joint Secretary, Government of India in the COFEPOSA Unit
of the Central Economic Intelligence Bureau, Department of Revenue,
Ministry of Finance, Government of India in exercise of the powers
conferred under Section 3(1) of the Conservation of Foreign Exchange and
Prevention of Smuggling Act 1974 („COFEPOSA‟). In both instances, the
impugned orders are identically worded inasmuch as each of them states that
the concerned Joint Secretary who issued the order is satisfied that each of
the Petitioners is required to be prevented from "smuggling goods, abetting
the smuggling of goods, or engaging in transporting, or concealing or
keeping smuggled goods or dealing in smuggled goods in future".
2. In W.P. (Crl) No. 1971 of 2018, the Petitioner is Mr. Sanjay Agarwal and
in W.P. (Crl) No. 1977 of 2018, the Petitioner is Mr. Ajay Agarwal, the
brother of Mr. Sanjay Agarwal.
3. It must be noted at the outset that identical detention orders were passed
against the above two Petitioners as well as a third Petitioner Mr. Preet
Kumar Agarwal, who is the son of Mr. Sanjay Kumar Agarwal. Mr. Preet
Kumar Aggarwal had filed W.P. (Crl) No. 1978 of 2018. However, the
Advisory Board declined to confirm the detention order in the case of
Mr.Preet Kumar Agarwal and consequently, the aforementioned writ
petition filed by him was rendered infructuous. It was disposed of as such by
this Court by a separate order passed on 21st August 2018.
4. As far as the present two petitions are concerned, since the background
facts are common, they are being disposed of by this common order.
Background facts
5. On 4th April 2018, the Department of Revenue Intelligence („DRI‟),
Kolkata Zonal Unit, Kolkata apprehended Mr. Preet Kumar Agarwal, the
son of Mr. Sanjay Agarwal from Netaji Subhas Chandra Bose International
Airport („NSCBI Airport‟) at Kolkata. Mr. Sanjay Agarwal, who had already
boarded an Indigo Airlines flight to Hyderabad was made to de-board from
that flight and was apprehended by a second team of DRI officials. On the
same date, a third team of DRI officials intercepted two boxes from Indigo
Airlines Domestic Cargo which contained 1194 pieces of gold bangles made
of 22 carat gold. The boxes weighed 54,096 gm and were valued at
Rs.16,10,43,792/-.
6. On 5th and 6th April 2018, the statement of Mr. Sanjay Agarwal was
recorded under Section 108 Customs Act 1962 („Customs Act‟). In that
statement, he is purported to have admitted to diverting goods meant for
export to the domestic market after all export formalities were completed
and that his son Mr. Preet Kumar Agarwal had helped him in this task. The
statements of Mr. Preet Kumar Agarwal and Mr. Ajay Agarwal were also
separately recorded under Section 108 Customs Act. Mr. Preet Kumar
Agarwal purportedly admitted to diverting two sealed boxes containing gold
bangles meant for export from Kolkata Airport to his father. The statement
of Mr. Ajay Agarwal was also recorded in which he allegedly stated that his
brother Mr. Sanjay Agarwal had invested money in his firm M/s. Kalpataru
Jewellers and that he had exported 19 consignments through M/s. Kalpataru
Jewellers.
7. On 5th and 6th April 2018, the premises of M/s. Ghanshyamdas Gems &
Jewels (the proprietor of which is Mr. Sanjay Agarwal), Shree Ganesh
Jewels (owned by Mr. Sanjay Agarwal‟s employee Mr. Avinsah Soni) , and
PH Jewels (owned by Mr. Sanjay Agarwal‟s sister-in-law) were searched.
The residential premises of Mr. Sanjay Agarwal at Hyderabad were also
searched. Nothing incriminating was found in these searches.
8. The version of the Respondents is that Mr. Sanjay Agarwal, along with
his son Mr. Preet Kumar Agarwal, were intercepted at Kolkata Airport on
4th April 2018 by the DRI, Kolkata Zonal Unit, while they were in the
process of diverting a consignment of 54 kg of gold jewellery meant for
export after completion of all export formalities by the customs authorities.
That consignment was supposed to be carried by Mr. Preet Kumar Agarwal
to Dubai. However, instead of bringing it to Dubai, Mr. Preet Kumar
Agarwal passed on the boxes containing the gold jewellery to his father Mr.
Sanjay Agarwal who was waiting outside the airport. Mr. Sanjay Agarwal in
turn booked the consignment of the said gold jewellery with Indigo Airlines
Domestic Cargo so as to transfer the same from Kolkata to Hyderabad. After
booking those boxes containing the gold jewellery, Mr. Sanjay Agarwal
boarded another Indigo Airlines flight to Hyderabad travelling on a ticket
booked in the name of his son Mr. Preet Kumar Agarwal.
9. According to the Respondents, even in the past, the Petitioners had
followed the same modus operandi with boxes containing gold jewellery
being booked for transport from Kolkata to Hyderabad in the names of the
firms controlled by Mr. Sanjay Agarwal or his relatives or employees. The
dates of these transactions were more or less coinciding with the date when
identical quantity of gold jewellery was shown to have been exported or
carried by hand to Dubai/UAE. According to the Respondents, this showed
that even on those occasions, gold jewellery meant for export were diverted
to the domestic market after completion of export formalities.
10. The exact date of the arrest of Mr. Sanjay Agarwal is disputed.
According to the Respondents, Mr. Sanjay Agarwal was arrested on 6th
April 2018, whereas according to Mr. Sanjay Agarwal, he was detained on
4th April 2018 itself.
11. What is, however, not in dispute is that bail applications were moved by
all three detenues on various dates thereafter. On 19th April 2018, the bail
application moved by Mr. Ajay Agarwal was rejected. On 3rd May 2018, the
bail application filed by Mr. Sanjay Agarwal along with Mr. Ajay Agarwal
was again rejected. On 16th May 2018, the bail application by Mr. Sanjay
Agarwal alone was rejected. On 17th May 2018, the Kolkata High Court
rejected another bail application of Mr. Ajay Agarwal.
12. On 24th May 2018, the proposal for detention was sent by the DRI to the
Detaining Authority for detention of the present Petitioners and Mr. Preet
Kumar Agarwal. Meanwhile, Mr. Ajay Agarwal was granted conditional
bail by an order dated 25th May 2018 of the Calcutta High Court subject to
conditions, one of which was that he should regularly appear before the
DRI.
13. The Central Screening Committee recommended the proposal for
detention of the present Petitioners and Mr. Preet Kumar Agarwal by a
written communication dated 28th May 2018. According to the Petitioners,
many of the relied upon documents („RUDs‟), referred to in the grounds of
detention, were dispatched only on 30th May 2018, barely two days before
the issuance of the order of detention from Delhi on 1 st June 2018.
14. On 1st June 2018, separate detention orders were passed in respect of
both the Petitioners in exercise of the powers conferred under Section 3(1)
COFEPOSA for the reasons mentioned hereinbefore.
15. On the next day, i.e. 2nd June 2018, when he appeared before the DRI,
copies of the detention orders were served upon Mr. Ajay Agarwal. As far as
Mr. Sanjay Agarwal was concerned, the impugned detention order was
served upon him on 4th June 2018. On 6th June 2018, the grounds of
detention and the RUDs were served upon both the Petitioners.
16. On 27th June 2018, a representation was made by the three detenues
seeking the supply of the RUDs although, in the counter affidavits filed in
the present petitions, the Respondents deny having received any such
representation. On 5th July 2018, the present writ petitions were filed.
Submissions on behalf of the Petitioners
17. This Court has heard the submissions of Mr. Vikram Chaudhri, learned
Senior Counsel appearing for the Petitioners; Mr. Amit Mahajan, learned
Central Government Standing Counsel appearing for the Union of India; and
Mr. Satish Agarwala, learned Senior Standing Counsel appearing for the
DRI.
18. One of the first grounds urged by Mr. Chaudhri is that both in the
detention orders as well as in the grounds of detention, the disjunctive „or‟ is
used in the reasons for justifying the detention of each of the Petitioners in
exercise of the powers under Section 3(1) COFEPOSA. Relying on the
decisions of the Supreme Court in Jagannath Misra v. State of Orissa AIR
1966 SC 1140 and Ananta Mukhi @ Ananta Hari v. State of West Bengal
(1972) 1 SCC 580, it is submitted that such casualness in the drafting of
detention orders would vitiate them as it reflected non-application of mind
by the Detaining Authority.
19. Secondly, it is contended that there is a variance in the subjective
satisfaction in the impugned detention orders when compared with the
grounds of detention. In respect of Mr. Sanjay Agarwal, it is pointed out that
while the detention order seeks to prevent Mr. Sanjay Agarwal from, in the
alternative, concealing smuggled goods, no mention of this has been made in
the grounds of detention. While the detention order seeks to prevent him
from abetting the smuggling of goods in addition to smuggling goods, the
grounds of detention states that it is to prevent him from "smuggling goods
or abetting the smuggling of goods". Likewise, the detention order mentions
„engaging in transportation‟ with the prefix „or‟ whereas the grounds of
detention do not. Likewise, in the case of Mr. Ajay Agarwal, the ground of
„abetting the smuggling of goods‟ is prefixed by the word „or‟ in the grounds
but not in the detention order. Further, the detention order mentions that it
has been passed to prevent Mr. Ajay Agarwal from "keeping smuggled
goods or dealing in smuggled goods in future", whereas no such mention is
made in the grounds of detention at all. Such variance, according to Mr.
Chaudhri, has caused confusion in the minds of the detenues and they are
unclear as to under which head they are to make a representation. The
phrase "dealing in smuggled goods" is also stated to be unclear. Reliance is
placed on the decision of the Supreme Court in Vijay Kumar Dharna @
Koka v. Union of India (1990) 1 SCC 606.
20. Thirdly, it is submitted that while passing the detention orders in respect
of both Petitioners, the Detaining Authority has substituted the name of the
detenue with „you‟ and the detention orders are in fact verbatim copies of
each other. It is accordingly submitted that in terms of the law explained in
Rajesh Vashdev Adnani v. State of Maharashtra (2005) 8 SCC 390, the
detention orders having been passed in a most casual manner, deserve to be
set aside.
21. Fourthly, it is submitted that the real ground of detention is the
apprehension of the Detaining Authority that there was an "imminent
possibility" (wrongly mentioned as "immense possibility") that the detenue
may be released on statutory bail. As far as Mr. Ajay Agarwal is concerned,
since he was already on bail by the time of the passing of the detention
order, in his case, this was clearly on account of non-application of mind. It
is submitted that this ground reveals that the detention orders were passed to
obviate the ordinary law of the land and to substitute the prosecution under
the Customs Act.
22. Fifthly, relying upon the decisions of the Supreme Court in Rekha v.
State of Tamil Nadu (2011) 5 SCC 244, Munagala Yadamma v. State of
Andhra Pradesh (2012) 2 SCC 386, and Yumman Ongbi Lembi Leima v.
State of Manipur (2012) 2 SCC 176, it is submitted that there was non-
application of mind by the Detaining Authority and many of the RUDs
which were prepared at Barasat, West Bengal were dated 30 th May 2018 but
were included in the RUDs to justify the order of detention passed merely
two days later. This made it doubtful that the said documents had at all been
placed before the Detaining Authority, who appears to have been issuing
detention orders in a tearing hurry and in undue haste without due
application of mind. It is pointed out that it is not humanly possible for the
Detaining Authority to have examined and applied its mind to the 761 pages
of the detention proposal and a total of 2283 pages on a single day and to
thereafter pass three different detention orders on the basis of the same.
Whenever a document was received, the Detaining Authority was required
to reformulate the grounds of detention after considering all the material
together. It is submitted that the detention orders were, therefore, passed in a
mechanical manner in undue haste without application of mind.
23. The detention orders and/or grounds of detention also contained factual
errors. In para 15 of the grounds of detention in Mr. Ajay Agarwal‟s case,
the Detaining Authority has mentioned "handing over two boxes containing
gold jewellery to you by Shri Preet Agarwal to his father Sanjay Agarwal".
This showed that there was a mere „cut and paste‟ of the grounds of
detention from one case to the other without any application of mind and in
a tearing hurry. Likewise, in para 33 of the grounds of detention in respect
of Mr. Sanjay Agarwal, the Detaining Authority mentions that his passport
has been detained by the DRI whereas it was in fact deposited in the CBI
Court, Hyderabad. It is accordingly submitted that the Detaining Authority
has simply signed the detention orders without verifying the facts.
24. Sixthly, it is submitted that several documents submitted as part of the
RUDs were illegible and this vitiated the detention. Reliance is placed upon
the decision of the Supreme Court in Manjit Singh Grewal @ Gogi v.
Union of India 1990 SCC (Supp) 59 and it is submitted that there was a
failure to supply the material / RUDs to the detenue. The relevant documents
were not even placed before the Detaining Authority. This included the
documents that would have proved the travel of the detenues to Dubai,
Hyderabad, etc. However, no flight ticket or boarding pass was collected.
25. Para 11 of the grounds of detention in both cases mentions that the SDO
(Departure), after receiving the sealed boxes containing the gold jewellery in
question, "entered the details in the register maintained at SDO Office".
However, the said register was neither placed before the Detaining Authority
nor supplied to Mr. Sanjay Agarwal. The authorization for conducting the
searches of the premises of M/s. Ghansyamdas Gems & Jewels and Shree
Ganesh Jewels was not placed on record. Even in the CBI case to which a
reference has been made, no charge-sheet had been filed.
26. With respect to the past conduct of Mr. Sanjay Agarwal, learned Senior
Counsel Mr. Chaudhri pointed out that the show-cause notices („SCNs‟)
were issued to M/s. Kalpataru Jewellers and Exports Corporation and PH
Jewels not under Section 135 Customs Act which talks of smuggling, but
under other provisions and all the duties demanded in terms thereof, stood
paid. Further, the matter was settled before the Settlement Commission and
an order in that regard was passed by the Settlement Commission on
26th June 2018 according immunity from prosecution. The detention orders
make no reference to the pendency of the matter of M/s. Kalpataru Jewellers
and Exports Corporation before the Settlement Commission. The failure to
mention this, leave alone the documents, has vitiated the detention. Even the
orders granting anticipatory bail to Mr. Sanjay Agarwal were not placed
before the Detaining Authority.
27. Mr. Chaudhri then submitted that the claim of the Detaining Authority
that prosecution could not have been lodged prior to a show cause notice
being issued to the detenue was fallacious. He relied on the decision in
Standard Chartered v Directorate of Enforcement (2006) 4 SCC 278.
Submissions on behalf of the Respondents
28. In reply, learned CGSC Mr. Mahajan referred to Section 5A
COFEPOSA and submitted that even if there was any defect in the grounds
for detention, it would not render the detention order invalid. He placed
reliance on the decision in Gautam Jain v. Union of India [decision dated
18th March 2014 of a Division Bench of this Court in W.P. (Crl) 2060/2013
and affirmed in Gautam Jain v. Union of India (2017) 3 SCC 133] and the
decision in T.P. Moideen Koya v. Government of Kerala (2004) 8 SCC 106.
He submitted that merely because Mr. Sanjay Agarwal was already in
custody did not mean that order of preventive detention could not be passed.
Since the period of 60 days after his detention was coming to an end on
6th June 2018 and his being released on bail was imminent, it was considered
justified to issue the order of preventive detention.
29. Mr. Mahajan further submitted that the past conduct of Mr. Sanjay
Agarwal disentitles him to any relief as prayed for by him. In particular, he
referred to an instance where despite being on bail and having surrendered
his passport, Mr. Sanjay Agarwal travelled abroad under a fake passport
using another name. Mr. Mahajan also referred to other instances where
there has been diversion of goods meant for export to the domestic market.
Mr. Mahajan submitted that even if the word „or‟ had been used, the
detention order had to be seen in the context of several acts committed by
the detenues which constituted one or more of the grounds specified in
Section 3(1) COFEPOSA. Therefore, according to Mr. Mahajan, the
detention orders were not bad in law.
Case of Mr. Sanjay Agarwal
30. The Court would first like to consider the grounds of detention in respect
of Mr. Sanjay Agarwal, the Petitioner in W.P. (CRL) 1971/2018. The
grounds of detention in that case specifically advert to the fact that at NSCBI
Airport, Kolkata on 4th April 2018, DRI officials spotted Mr. Preet Kumar
Agarwal as he approached Gate No.11. They asked him about the
consignment of gold bangles which was supposed to be in his possession for
export to Dubai on a hand-carry basis. According to the grounds of
detention, after initially being hesitant, Mr. Preet Kumar Aggarwal admitted
that "he had diverted the export consignment of gold bangles to his father
Shri Sanjay Agarwal".
31. Another team of DRI officers intercepted Mr. Sanjay Agarwal while he
had already boarded an Indigo Airlines flight to Hyderabad. He too
purportedly admitted to having received the boxes containing gold bangles
from Mr. Preet Kumar Agarwal.
32. This Court posed a pointed query to Mr. Mahajan as to the effect of the
Advisory Board not confirming the detention order of Mr. Preet Kumar
Agarwal. In the narration of the facts discernable from the grounds for
detention, it is apparent that Mr. Preet Kumar Agarwal was himself involved
in the act of diverting gold meant for export to the domestic market and he
was clearly acting in consort with Mr. Sanjay Agarwal. If Mr. Preet Kumar
Agarwal is removed out of the picture on account of the non-confirmation of
his detention, the case against Mr. Sanjay Aggarwal is considerably
weakened.
33. The grounds of detention do notice that all three of them, i.e. Mr. Sanjay
Agarwal, Mr. Ajay Agarwal and Mr. Preet Kumar Agarwal, were arrested
under the Customs Act and were in judicial custody with their bail
applications having been rejected.
34. Paras 33 and 34 of the grounds of detention in respect of Mr. Sanjay
Agarwal read as under:
"33. I am aware that you are at present under judicial custody
and your passport is detained by the DRI, Kolkata. However,
there is an immense (sic) possibility that you may be released
on statutory bail and thereby you may continue to indulge in
such prejudicial: activities of smuggling of goods by way of
diverting gold meant for export and therefore, there is a need to
issue a Detention Order against you under the COFEPOSA Act,
1974 with, a view to prevent you from smuggling of goods,
abetting the smuggling of goods, engaging in transporting of
smuggled goods, or dealing in smuggled goods in future.
34. Considering the nature and gravity of offence and the
planned manner in which you have engaged yourself in such
prejudicial activities and your role therein, all of which reflect
your high potentiality and propensity to indulge in such
prejudicial activities in future, I am satisfied that there is a need
to prevent you from smuggling gold in future, you ought to be
detained under the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act (COFEPOSA, 1974)
with a view to preventing you from smuggling goods, or
abetting the smuggling of goods, engaging in transporting or
keeping smuggled goods, or dealing in smuggled goods in
terms of Section 3(1) of the COFEPOSA Act, 1974." (emphasis
supplied)
35. As already noticed, the word „immense‟ occurring in para 33 of the
grounds should be read as „imminent‟. The fact remains that Mr. Sanjay
Agarwal was in fact not granted bail. In fact, all his bail applications were
rejected. With there being no bail application pending as such, the only
reason for the apprehension of his release was the fact that the statutory
period of 60 days after his arrest was coming to an end which meant that
under Section 167 Cr PC, he would be entitled to a statutory bail.
36. The question, therefore, is whether that is a sufficient ground for
invoking the extraordinary measure of preventive detention. In light of the
decision in Rekha (supra), this question is no longer res integra. It was
observed therein that preventive detention is not meant to be punitive and
should only be used in exceptional cases and not as a substitute for the
regular criminal law.
37. That the customs authorities were inefficient in ensuring that the challan
against the detenue is filed in time, i.e. within 60 days after his arrest, will
not mean that the power of preventive detention could be exercised. This
would otherwise encourage an undesirable practice of the law enforcement
agency allowing the detention of a detenue to continue till the statutory
period under Section 167 Cr PC is set to expire, and then after failing to file
a challan, mechanically invoke the power of preventive detention in the
eleventh hour.
38. The Supreme Court in Moideen Koya (supra) has no doubt observed that
a preventive detention order may be passed even against a person already in
custody but as noted therein, the law in this regard has been explained in
Rameshwar Shaw v. District Magistrate AIR 1964 SC 334 as under:
"As an abstract proposition of law, there may not be any doubt
that Section 3(1) (a) does not preclude the authority from
passing an order of detention against a person whilst he is in
detention or in jail, but the relevant facts in connection with the
making of the order may differ and that may make a difference
in the application of the principle that a detention order can be
passed against a person in jail."
39. The Supreme Court in Moideen Koya (supra) also made reference to the
decision in Vijay Kumar v. State of Jammu and Kashmir (1982) 2 SCC 43
wherein it was observed:
"If the detenu is already in jail charged with a serious offence,
he is thereby prevented from acting in a manner prejudicial to
the security of the State. Maybe, in a given case there yet may
be the need to order preventive detention of a person already in
jail. But in such a situation the detaining authority must disclose
awareness of the fact that the person against whom an order of
preventive detention is being made is to the knowledge of the
authority already in jail and yet for compelling reasons a
preventive detention order needs to be made."
40. Therefore, it is incumbent upon the Respondents to make out the
„compelling reasons‟ that necessitated a preventive detention order to be
passed in respect of Mr. Sanjay Agarwal even though all his previous bail
applications had been rejected and there was no pending bail application qua
him. In the considered view of the Court, the imminent possibility of the
detenu being entitled to statutory bail was not a „compelling‟ reason to
invoke the extraordinary power of preventive detention.
41. Now turning to the next pint about non-application of mind by the
detaining authority, it may be observed that the observations in Gautam
Jain (supra) were in a converse context of the grounds of detention not
being segregated. There the Court referred to Section 5A COFEPOSA and
to the decision in Vashisht Narain Karwaria v. State of Uttar Pradesh
(1990) 2 SCC 629 and held that even if one of the grounds was vague, non-
existent, or not relevant and was not connected to other reasons or grounds,
it would not vitiate the order of detention.
42. However, that is not the case here. It is apparent to the Court that the
Detaining Authority was unclear about the grounds on which it should
authorise the detention of Mr. Sanjay Agarwal. This is evident from the
reading of para 34 where repeatedly the word „or‟ is used to separate out the
different grounds. This is suggestive of two things: first, the Detaining
Authority was unsure if the facts brought on record constituted one or more
of these grounds; and second, there was in fact non-application of mind as
simply taking the wording of the Section 3(1) COFEPOSA and repeating it
as part of the grounds would not constitute a finding arrived at after an
application of mind.
43. The differences in the wording used between the order of detention and
the grounds of detention are too stark to simply be dismissed as
typographical errors. The casualness in this kind of an approach has been
earlier adversely commented upon by the Supreme Court in Jagannath
Misra (supra). In that case too there was confusion as to the use of the
conjunctive „and‟ and the disjunctive „or‟ and the Court, in that regard,
observed as under:
"Where a number of grounds are the basis of a detention order,
we would expect the various grounds to be joined by the
conjunctive "and" and the use of the disjunctive "or" in such a
case makes no sense. In the present order however we find that
the disjunctive "or" has been used, showing that the order is
more or less a copy of S. 3 (2) (15) without any application of
the mind of the authority concerned to the grounds which apply
in the present case."
44. Section 5A COFEPOSA would not come to the aid of the Respondents
where they themselves are unclear as to which of the grounds would apply.
This is not an issue of mere vagueness, but of absolute non-application of
mind.
45. Apart from the fact that the grant of statutory bail to Mr. Sanjay Agarwal
is imminent, there were no real "compelling reasons" as to why the
preventive detention order should have been passed. The instances of past
conduct referred to have also not been adverted to with any specificity.
When this Court pointedly asked whether in relation to the transactions of
2017, any SCN had been issued to Mr. Sanjay Agarwal or the firms
connected with him, the answer was in the negative. In other words, it is still
not clear whether those transactions in fact constituted an act of
„smuggling‟.
46. Further, the counter affidavit cites past instances of failure by the firms
of Mr. Sanjay Agarwal to fulfil certain conditions that pertained to the
import of gold for the purposes of export. The mere non-fulfilment of such
conditions would not amount to smuggling for the purposes of preventive
detention under the COFEPOSA. Even as regards the instances where Mr.
Sanjay Agarwal is supposed to have travelled abroad, despite his passport
being detained, by using a fake passport, Mr. Mahajan states that there was
no case against him under the Passport Act 1967. Therefore, it is not even
clear whether Mr. Sanjay Agarwal was in fact involved in that incident.
47. The Respondents also do not have any satisfactory answer as to the error
on facts pointed out with regard to detention order mentioning that the
passport of Mr. Sanjay Agarwal had been detained by the DRI when in fact
it was detained by the CBI Court in an unrelated case registered against him
under Section 420 IPC. This Court is, therefore, not satisfied that the past
conduct of Mr. Sanjay Agarwal was such that would warrant his preventive
detention in terms of Section 3(1) COFEPOSA.
48. For all of the aforementioned reasons, this Court is not satisfied that the
impugned detention order dated 1st June 2018 issued qua Mr. Sanjay
Agarwal is sustainable in law.
Case of Mr. Ajay Agarwal
49. Now turning to the detention order qua Mr. Ajay Agarwal. One stark
fact is that even prior to the passing of the detention order, Mr. Ajay
Agarwal obtained anticipatory bail. The apprehension that as a result of that
anticipatory bail, he would continue indulging in smuggling is belied by the
fact that again in his case, there was clearly no application of mind with
there being variations between the order of detention and the grounds of
detention. In his case, the fact that he had been granted anticipatory bail is
noted in para 33 of the ground of detention:
"33. I am aware that you are presently on bail and you may
continue to indulge in such prejudicial activities of smuggling
of goods by way of diverting gold meant for export or
otherwise in similar fraudulent activities in future and therefore,
there is a need to issue a Detention Order against you under the
COFEPOSA Act, 1974 with a view to prevent you from
smuggling of goods, abetting smuggling of goods in future."
50. However, it was not noted that Mr. Ajay Agarwal had in fact been
complying with the conditions of his anticipatory bail. There is no known
instance of his indulging in smuggling during that time. In fact, it is when he
came to attend the hearing before the DRI pursuant to the notice issued to
him, and in compliance with the conditional anticipatory bail application,
that the grounds of detention were served upon him.
51. Further as already noted, in para 15 of the grounds of detention in Mr.
Ajay Agarwal‟s case, the Detaining Authority has mentioned "handing over
two boxes containing gold jewellery to you by Shri Preet Agarwal to his
father Sanjay Agarwal". Ajay Agarwal was not, even according to the
Respondents, in the Kolkata airport at the relevant time on 4 th June 2018.
This showed that there was a mere „cut and paste‟ of the grounds of
detention from one case to the other without any application of mind and the
detention order was issued in a tearing hurry.
52. The detention order in respect of Ajay Aggarwal sites past instances but
nothing in the present. The absence of any live link with any present
instance is nowhere discernible on a reading of the grounds of detention.
Further, by not referring to the conditions attached to the grant of
anticipatory bail, to simply state that Mr. Ajay Aggarwal would continue to
indulge in activities related to smuggling demonstrates a non-application of
mind by the Detaining Authority to the facts governing his case.
Conclusion
53. For all of the aforementioned reasons, this Court finds both the detention
orders dated 1st June 2018 passed in respect of each of the Petitioners, i.e.
Mr. Sanjay Agarwal and Mr. Ajay Agarwal, to be unsustainable in law and
they are accordingly hereby quashed. Both the Petitioners shall be released
forthwith from custody.
54. Both the writ petitions are accordingly allowed in the above terms but, in
the circumstances, with no orders as to costs.
S. MURALIDHAR, J.
VINOD GOEL J.
AUGUST 27, 2018
rd
$~7 & 8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 1971/2018 & Crl.M.A.No 12159/2018
SANJAY AGARWAL ..... Petitioner
Through Mr. Vikram Chaudhri, Sr.Advocate
with Mr. Vijay Advani, Mr.Harshit Sethi, Mr.
Raktim Gogoi, Mr. R.P.Saini & Mr. Rishi Sehgal,
Advocates
versus
UNION OF INDIA AND OTHERS ..... Respondents
Through Mr. Satish Aggarwala & Mr. Vineet
Sharma, Advocates for DRI
+ W.P.(CRL) 1977/2018 & Crl.M.A.No. 12179/2018
AJAY AGARWAL ..... Petitioner
Through Mr. Vikram
Chaudhri, Sr.Advocate with Mr. Vijay Advani,
Mr.Harshit Sethi, Mr. Raktim Gogoi, Mr.
R.P.Saini & Mr. Rishi Sehgal, Advocates
versus
UNION OF INDIA AND OTHERS ..... Respondents
Through Mr. Satish Aggarwala & Mr. Vineet
Sharma, Advocates for DRI
CORAM:
JUSTICE S.MURALIDHAR
JUSTICE VINOD GOEL
ORDER
% 27.08.2018
1. The judgments have been pronounced today. Copies thereof be
given to the parties under the signatures of the Court Master. The
Registrar General of this Court will communicate this order as well as
the judgment through E-mail, Fax and telephone to the
Superintendent of Dum Dum Central Jail, where the Petitioners are
presently lodged.
S.MURALIDHAR, J.
VINOD GOEL, J.
AUGUST 27, 2018
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