Delhi High Court
Gopal Gupta vs Union Of India & Ors. on 6 August, 2021
#J-1 & J-2
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved On : 04.06.2021
Judgment Pronounced On : 06.08.2021
+ W.P.(CRL) 1829/2020
GOPAL GUPTA ..... Petitioner
versus
UNION OF INDIA & ORS. ..... Respondents
J-2
+ W.P.(CRL) 1830/2020
AMIT PAL SINGH ..... Petitioner
versus
JOINT SECRETARY COFEPOSA
& ORS. ..... Respondents
W.P.(CRL.) 1829/2020 & W.P.(CRL.) 1830/2020 Page 1 of 107
Signature Not Verified
Digitally signed
by:DURGESH NANDAN
Signing Date:06.08.2021
19:10:22
Advocates who appeared in this case:
For the Petitioners: Mr. Akhil Sibal, Senior Advocate with Mr. Shivek
Trehan, Ms.Shagun Chopra, Mr. Samuel Lalroehan
Khobung, Ms. Sayesha Suri and Mr. Pranay Mohan
Govil, Advocates in W.P.(CRL.) 1829/2020
Mr. Akhil Sibal, Senior Advocate with Mr. Shivek
Trehan, Ms.Shagun Chopra, Mr. Samuel Lalroehan
Khobung, Ms. Sayesha Suri and Mr. Pranay Mohan
Govil, Advocates in W.P.(CRL.)1830/2020.
For the Respondents: Mr. Amit Mahajan, CGSC with Mr.Dhruv Pande
and Mr.Kritagya, Advocates for UOI in W.P.(CRL.)
1829/2020 & W.P.(CRL.) 1830/2020.
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
JUDGMENT
SIDDHARTH MRIDUL, J (via Video Conferencing)
1. These two writ petitions under Article 226 of the Constitution
of India, essentially in the nature of writ of habeas corpus,
have been instituted on behalf of Gopal Gupta, the petitioner in
W.P.(CRL.) 1829/2020 and Amit Pal Singh, the petitioner in
W.P.(CRL.) 1830/2020 (hereinafter collectively referred to as
the 'detenu'), praying for quashing of detention orders bearing
No. PD-12001/01/2020-COFEPOSA and PD-12001/02/2020-
Signature Not Verified
Digitally signed
by:DURGESH NANDAN
Signing Date:06.08.2021
19:10:22
COFEPOSA respectively, both dated 21.01.2020, and for
further directions that the detenu be set at liberty forthwith.
FACTS OF THE CASE:-
2. The relevant facts qua the detenus, as are necessary for the
adjudication of the subject writ petitions are briefly
encapsulated as follows: -
i) Both the detenus are statedly employees of a
company namely, M/s. Its My Name Private Limited
(hereinafter referred to as 'IMNPL').
ii) IMNPL is a government recognized three star export
house, engaged in the business of manufacturing,
import and export of gold jewellery and other allied
bullion items.
iii) IMNPL has been duly issued an Import Export Code
(IEC) bearing No.0514037342 from the office of the
Joint Director, Directorate General of Foreign Trade
(hereinafter referred to as 'DGFT') and is stated to
have earned foreign exchange valuing around 150
million USD for the country.
Signature Not Verified
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by:DURGESH NANDAN
Signing Date:06.08.2021
19:10:22
iv) IMNPL has also obtained Advance Authorization
Licence from the office of DGFT, New Delhi, inter
alia permitting import of 1000 kgs of gold bars.
v) IMNPL has against the said Advance Authorization
Licence imported 50 kgs of gold bars and completed
export obligation of approximately 19 kgs of gold
bars vídé Export Invoice No.ITS/EXP/04 dated
20.04.2019; with balance export obligation of
approximately 31 kgs.
vi) At this juncture, it is relevant to observe that the
stock related to the aforementioned balance export
obligation, was resumed by the Directorate of
Revenue Intelligence (hereinafter referred to as the
'DRI') on 24-25.04.2019, from the factory premises
of IMNPL at Pitampura, Delhi.
vii) It is the detenus' case that similar licences have been
duly issued in the past as well and that export
obligations thereunder have been duly fulfilled by
IMNPL.
Signature Not Verified
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by:DURGESH NANDAN
Signing Date:06.08.2021
19:10:22
viii) IMNPL also purchased gold form the domestic
market, duty and GST in relation to which has been
duly paid; besides directly importing gold under the
Advance Authorization Scheme, as afore-stated.
ix) IMNPL is stated to have exported domestic gold
jewellery under the Exhibition Export Scheme of the
Foreign Trade Policy (FTP 2015-20)
x) At this stage, it is relevant to observe that as per Para
4.46 of FTP, read with Para 4.80 of the Hand Book
of Procedure, domestic jewellery can be exported for
exhibitions abroad with the approval of Gems &
Jewellery Export Promotion Council (hereinafter
referred to as 'GJEPC'), which approval was granted
to IMNPL subject to the condition that unsold gold
jewellery has to be re-imported back within 60 days
from the close of such exhibition, failing which they
would become liable to pay import duty on the
quantity of the said re-import. Further, as per
Customs Notification No.45/17 dated 30.06.2017,
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by:DURGESH NANDAN
Signing Date:06.08.2021
19:10:22
the condition for exemption is that, the goods that
are re-imported from such exhibition abroad are
required to be the same which were exported.
xi) IMNPL had, with the approval of GJEPC, exported
gold jewellery manufactured from the domestic
stock of gold for overseas exhibition. It is,
therefore, the detenus' case that, evidently there was
no duty payment required at the stage of re-import of
the subject gold into the country, within the
stipulated time period of 60 days.
xii) IMNPL received an invitation for one such
exhibition to be held from 18.02.2019 to 30.03.2019
from M/s. M.N. Khan Jeweller, based in United
Arab Emirates (UAE), duly signed by its director
Mr. Mohd. Nashruddin Khan; and in pursuance
thereto had approached GJEPC seeking permission
for participation, which was duly allowed vídé letter
dated 15.02.2019 for the entire duration of the
exhibition, as afore-noted.
Signature Not Verified
Digitally signed
by:DURGESH NANDAN
Signing Date:06.08.2021
19:10:22
xiii) In pursuance to this invitation, detenu Amit Pal
Singh was entrusted with the work to hand-carry
(personal carriage) the gold jewellery to UAE for the
purpose of exhibition, in accordance with the
permission granted and in compliance with the
provisions applicable.
xiv) Export of the gold jewellery was done by IMNPL
after filing the requisite shipping bills along with
necessary documents.
xv) The subject gold was duly assessed by the Customs
at the time of clearance for export; the photographs
of the goods being exported through hand-carry,
were also checked and seen by the Customs
Jewellery Appraiser posted at the Export Shed Air
Cargo; and after verification of the same, the said
photographs were signed and appraised by the
Appraiser and then given back in sealed cover to the
person hand-carrying the gold jewellery.
Signature Not Verified
Digitally signed
by:DURGESH NANDAN
Signing Date:06.08.2021
19:10:22
xvi) The gold jewellery, which remained unsold at the
time of exhibition was brought back by the co-
detenu Amit Pal Singh from UAE. The detenu Amit
Pal Singh landed at the Indira Gandhi International
Airport, New Delhi on 24.04.2019 at around 06.30
p.m. and approached the Red Channel for the
purpose of declaration of the goods brought back by
him.
xvii) Amit Pal Singh, the detenu is stated to have filed
reimport documents such as packing lists cum
invoice; and provided the sealed packet of
photographs to the Customs Appraiser along with
the shipping bills, Export Declaration Form and
endorsed copies of packing list-cum-invoice, given
to detenu at the time of export, respectively for the
quantities of unsold gold jewellery being brought
back out of earlier exported goods concerning
shipping bills dated 20.02.2019 and 13.03.2019; as
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by:DURGESH NANDAN
Signing Date:06.08.2021
19:10:22
well as making requisite declaration, as per the
Standard Operating Procedure.
xviii) The Customs Jewellery Appraiser deputed at the
Red Channel, duly checked and verified the said
documents and appraised the subject gold jewellery
and after properly satisfying himself that the gold
jewellery was the same, which was exported,
allowed Amit Pal Singh, the detenu to take the same
by issuing necessary Customs Gate Pass in this
behalf.
xix) However, when Amit Pal Singh, the detenu was
about to leave the IGI Airport, after clearance from
the Red Channel, the officers of DRI intercepted
him, statedly on specific information and carried out
search of his baggage as well as his person allegedly
on the suspicion that he was illegally importing gold
jewellery for evasion of customs duty.
xx) DRI seized the gold jewellery weighing 51.172 kgs,
carried by the detenu Amit Pal Singh in his baggage.
Signature Not Verified
Digitally signed
by:DURGESH NANDAN
Signing Date:06.08.2021
19:10:22
xxi) Thereafter, the business/factory premises of IMNPL
were also searched, wherein 25 foreign origin gold
bars total weighing 25 kgs, cut pieces of gold bars,
gold dust and assorted gold jewellery totally
weighing 26.404 kgs and silver bars and cut pieces
of silver weighing 44.78 kgs was recovered and
seized under Panchnama dated 24-25.04.2019.
xxii) Thereafter, inter alia search was also conducted at
the residential premises of one Rahul Gupta, owner
of IMNPL, although nothing incriminating was
found or recovered therefrom.
xxiii) Mohd. Nashruddin Khan, who was the director of
M/s. M.N. Khan Jeweller, UAE and was travelling
on the same flight as Amit Pal Singh (the detenu)
was also intercepted and detained by the DRI.
xxiv) Gopal Gupta detenu, who is employed as a
Chartered Accountant by IMNPL was also detained
by the DRI vídé arrest memo dated 26.04.2019.
Signature Not Verified
Digitally signed
by:DURGESH NANDAN
Signing Date:06.08.2021
19:10:22
xxv) Statements of the detenus were recorded on
25.04.2019 under Section 108 of the Customs Act,
1962 (hereinafter referred to as the 'Customs Act')
and they were taken into custody by the DRI, who
formally placed them under arrest on 26.04.2019.
xxvi) It is observed here that, bail was granted to the
detenus on 03.06.2019.
xxvii) One Vikram Bhasin, who was the Customs
Jewellery Appraiser at the IGI Airport, New Delhi
was subsequently arrested by the DRI on 31.05.2019
and his statements were statedly recorded by the
DRI. The said Vikram Bhasin (Customs Jewellery
Appraiser, IGI Airport, New Delhi) was released on
bail vídé order dated 23.07.2019.
xxviii) IMNPL requested the DRI for provisional release of
the seized goods, which request was rejected by the
ADJ, Adjudication, Delhi vídé order dated
04.10.2019.
Signature Not Verified
Digitally signed
by:DURGESH NANDAN
Signing Date:06.08.2021
19:10:22
xxix) Before rejecting the request for provisional release, a
Show Cause Notice dated 26.09.2019 was issued to
IMNPL by the DRI, New Delhi proposing
confiscation of the seized gold jewellery.
xxx) IMNPL being aggrieved by the DRI's said order
dated 04.10.2019, preferred a Customs Appeal
before the Customs Excise and Service Tax
Appellate Tribunal (CESTAT), which vídé order
dated 13.11.2019 allowed conditional release of the
seized goods. The said order passed by the
CESTAT was modified by this Court vídé judgment
dated 01.06.2020, permitting the provisional release
of all the goods seized by the DRI, save and except
the gold jewellery that was seized at the airport.
xxxi) A review petition preferred by the IMNPL before
this Court in the said proceeding is still pending
adjudication; although DRI's Special Leave Petition
(SLP) against this Court's judgment dated
01.06.2020 was disposed of by the Hon'ble Supreme
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by:DURGESH NANDAN
Signing Date:06.08.2021
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Court vide order dated 01.10.2020, modifying the
judgment of this Court, only to the extent of
enhancing the value of Bond and Bank Guarantee, to
be furnished for the provisional release.
xxxii) In the meantime, the impugned detention orders
were passed on 21.01.2020.
xxxiii) It is relevant to point out that the impugned orders of
detention were earlier challenged by the petitioners
herein at the pre-execution stage, by filing
W.P.(CRL.) 1009/2020 and W.P.(CRL.) 1019/2020,
respectively.
xxxiv) This Court by way of its judgment dated 11.09.2020
dismissed both the said writ petitions, which
judgment has also been affirmed by the Hon'ble
Supreme Court vídé order dated 30.09.2020 in SLP
(CRL.) 4618/2020 and SLP (CRL.) 4620/2020.
xxxv) Pursuant thereto, the petitioners surrendered before
the learned Additional Sessions Judge, Patiala House
Courts, New Delhi vídé surrender application dated
Signature Not Verified
Digitally signed
by:DURGESH NANDAN
Signing Date:06.08.2021
19:10:22
30.09.2020; at which point of time they were served
with the detention orders, impugned herein, in the
Court premises itself by the officers of the Executing
Authority on 01.10.2020 and thereafter taken to
Tihar Jail, New Delhi; where the detenus are in
custody till date.
3. A perusal of the grounds of detention, impugned in these
proceedings reveal that the role assigned therein to detenu
Gopal Gupta pursuant to the investigation carried out is that :-
(a) Detenu was Chartered Accountant in IMNPL and
used to prepare Bill of Entry for import of gold
and packing list & invoice for export,
preparation/validation of documents pertaining to
exhibition export and re-import of M/s Its My
Name Pvt. Ltd, in addition to accountancy work
and maintaining accounts for sale/purchase of
gold in IMNPL.
Signature Not Verified
Digitally signed
by:DURGESH NANDAN
Signing Date:06.08.2021
19:10:22
(b) Detenu described the modus operandi vídé his
voluntary statement recorded under Section 108
Customs Act dated 25.04.2019, whereby the re-
imported gold jewellery was mis-declared at the
time of import, using improper documentation.
The Bill of Entry presented to Customs at the time
of import was later replaced in the files in
collusion with Vikram Bhasin, the then Jewellery
Appraiser, IGI Airport, New Delhi, who allegedly
used to replace Bill of Entry of large quantity with
those of small quantity of gold jewellery in the
official records; after clearance of the gold
jewellery, which was exported from India and
again brought (smuggled) back into India, in the
guise of unsold gold jewellery and cleared
through Customs by presenting either registered
or unregistered manual Bill of Entry qua the re-
import of unsold gold jewellery out of gold
exported for exhibition;
Signature Not Verified
Digitally signed
by:DURGESH NANDAN
Signing Date:06.08.2021
19:10:22
(c) The foreign origin duty free gold imported by
IMNPL under the Advance Authorization scheme,
was diverted into the domestic market through
persons working for IMNPL, on the directions of
detenu and the Proprietor Mr. Rahul Gupta;
(d) Further, for execution of the conspiracy, a remote
server was maintained by the detenu Gopal Gupta
in his office (by using URL
'TRAMU.DDNS.NET' from the computer
installed in their office) to store sensitive
documents related to actual export, import, re-
export transactions and other related papers. But
the said detenu disabled remote server during
search proceedings by DRI on 24/25.04.2019 so
as to conceal the sensitive documents related to
actual export, import, re-export transactions and
other related papers;
(e) In the course of investigation in one case detected
by Customs (Prev.), relating to misuse of SEZ
Signature Not Verified
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by:DURGESH NANDAN
Signing Date:06.08.2021
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scheme by M/s. Bharti Gems, it had transpired
that the said detenu used to upload import-export
documents through Team Viewer application and
send it to M/s. Bharti Gems, where Amit Pal
Singh, co-detenu , used to download the
documents and submit the same documents to
SEZ authorities, for further processing of import
and export;
(f) Therefore, prima facie it appeared that all the
documents relating to fraudulent re-import of gold
jewellery for smuggling of the same into India,
have been prepared by the said detenu.
4. Also a perusal of the grounds of detention, impugned in these
proceedings, reveal that the role assigned therein to detenu
Amit Pal Singh, pursuant to the investigation carried out is
that:-
(a) Detenu was an employee of IMNPL and played
significant role and aided Mr. Rahul Gupta (Director of
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by:DURGESH NANDAN
Signing Date:06.08.2021
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IMNPL) in misusing the Advance Authorization
Scheme through circular trading of gold jewellery
exported under the guise of exhibition from India
through hand- carrying and subsequently re-importing
(smuggling) the same fraudulently into India.
(b) As per the travel details available on record detenu
travelled from India to Dubai 115 times and travelled
Dubai to India 115 times since 2016;
(c) Detenu was allegedly a key member of the syndicate
and played a key role therein by managing the
circuitous trade of gold jewellery; by mis--declaring the
quantity of gold jewellery; by importing the same
through hand-carry; and thereby abetting Mr. Rahul
Gupta in misusing the Advance Authorization Scheme;
and making several visits from India to Dubai for the
purpose of the exhibition of gold jewellery at Dubai on
behalf of the firm, IMNPL and by hand-carrying the gold
jewellery with him. The said detenu re-imported and
smuggled the gold jewellery from Dubai to India (for
Signature Not Verified
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by:DURGESH NANDAN
Signing Date:06.08.2021
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IMNPL) on each of his visit by using illegal import
documentation in the form of illicit Bills of Entry, which
had been used multiple times in the past.
(d) Detenu specifically smuggled gold jewellery into India,
which was declared to be exported to Nepal by M/s.
M.N. Khan Jewellers in Dubai, in collusion with
Musthafa Kamal, Mohd. Nashruddin and the Customs
official at IGI Airport, New Delhi, on his earlier visits
on 29.03.2019 and 02.04.2019 on the strength of
Custom Gate Pass Serial No.1561 dated 29.03.2019 and
1563 dated 02.04.2019
(e) Detenu was intercepted by DRI officials at IGI Airport
on 24.04.2019 when they noticed that M/s. M.N. Khan
Jewellers, Dubai has filed declaration before Dubai
Customs that 51.362 kgs gold jewellery were exported
to Kathmandu, Nepal through hand-carry by
Mr.Musthafa Kamal Ramalap and 0.745 kgs gold
jewellery was exported to Delhi through hand-carry by
the detenu, but he received all the three consignments
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by:DURGESH NANDAN
Signing Date:06.08.2021
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of gold jewellery cumulatively weighing 51.362 kgs
(gross weight declared to Dubai Customs), which were
declared before Dubai Customs, to be exported to
Kathmandu, Nepal (by M/s. M.N. Khan Jewellers FZE,
Dubai) through Musthafa Kamal Ramalap along with
the consignment of gold jewellery cumulatively
weighing 0.745 kgs (gross weight), with an intention to
smuggle the same into India. As a result detenu
allegedly smuggled the whole consignments of gold
jewellery into India (declared before Dubai Customs
for export to Kathmandu and India.
ARGUMENTS ON BEHALF OF THE PETITIONERS:-
5. Mr. Akhil Sibal, learned Senior Counsel appearing on behalf of
the petitioners vehemently assails the impugned orders of
detention by first submitting that, the detaining Authority
was predisposed and lacked independence; as the petitioners
discovered a letter dated 02.09.2019 written by the Detaining
Authority---Mr. R.P. Singh, Joint Secretary (COFEPOSA) to
the Director General, DGFT which predates the impugned
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by:DURGESH NANDAN
Signing Date:06.08.2021
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detention order dated 21.01.2020 by 4½ months. The said
letter was admittedly produced by the DGFT in certain other
proceedings. A plain reading of the said communication
establishes that Mr. R.P. Singh was aware of and involved with
the investigation being conducted into the case against the
petitioners much prior to passing the impugned detention
orders. Pertinently, the letter is signed by Mr. R.P. Singh as
'Joint Secretary'. It was urged that in the said letter, Mr. R.P.
Singh had painstakingly outlined the investigation carried out
by the DRI, shared intelligence and requested cooperation of
the DGFT, in what he statedly described as "gold sector fraud
having multi agency ramification". The said letter also carries
a reference to an earlier letter dated 02.08.2019 from the DRI,
thereby meaning that Mr. R.P. Singh was aware of the
petitioners' cases at least as early as 02.08.2019. Mr. R.P.
Singh pertinently ends the letter dated 02.09.2019 by
recommending that the DGFT take action and also requests
that "...the Bureau may be given periodic updates in the matter
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by:DURGESH NANDAN
Signing Date:06.08.2021
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so that effective coordination in the investigation may be
achieved."
6. It was further submitted by learned Senior Counsel appearing
on behalf of petitioners' that the additional affidavit dated
10.02.2021 filed on behalf of the respondents in the present
proceedings confirms that Mr. R.P. Singh authored the
aforesaid letter. However, the affidavit then goes on to explain
that the said letter was authored by Mr. R.P. Singh "...while
working in the additional capacity of other vertical i.e.
Economic Intelligence of the CEIB...". However,
axiomatically no such distinction is discernible from the letter
itself. Paragraph 5 of the subject affidavit further states that
CEIB is headed by a Director General who is assisted by one
Joint Secretary designated as J.S. (COFEPOSA) and two Addl.
Directors General. Pertinently, the letter dated 02.09.2019 is
signed by Mr. R.P. Singh in his capacity as Joint Secretary and
not in any other capacity. As a result, Mr. R.P. Singh was
seized of the matter and was sharing intelligence and
coordinating between different agencies as on 02.09.2019.
Signature Not Verified
Digitally signed
by:DURGESH NANDAN
Signing Date:06.08.2021
19:10:22
Even if it is assumed that Mr. R.P. Singh authored the letter
dated 02.09.2019 in "additional capacity of other vertical",
though there is no material to suggest so, it is clear that he was
actively engaged in the matter for months prior to passing the
impugned detention orders and was abreast of the investigation
for onward dissemination, coordination and action to other
investigating agencies. Even the Show Cause Notice under
Section 124 of the Customs Act dated 26.09.2019 issued by
the DRI on culmination of their investigation was revealingly
copied to the CEIB.
7. It is also submitted that the dual role played by Mr. R.P. Singh
- first, in the Economic Intelligence vertical of the CEIB (as
claimed by the respondents) in the active investigation; and
second, as J.S. (COFEPOSA) in passing the impugned
Detention Orders, goes to the root of the matter and defeats the
very purpose of appointing a "specially empowered" officer
under Section 3(1) of the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1974 (hereinafter
referred to as the 'COFEPOSA'), whose satisfaction must in
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by:DURGESH NANDAN
Signing Date:06.08.2021
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law, be independent and free from any bias or predisposition.
As such, the subjective satisfaction of the Detaining Authority
in the present case stands vitiated and the impugned detention
orders ought to be quashed, on this ground alone.
8. It has then been argued on behalf of petitioners that there was
gross and unexplained delay in passing of detention orders
dated 21.01.2020, viewed within the four corners of settled
law that a detention orders stand vitiated, if on account of
delay in passing the same, the live and proximate link and
between the prejudicial activities of the detenu and the
rationale of clamping a detention orders on the detenu is
snapped. In this behalf it is emphasized that the impugned
detention orders were passed on 21.01.2020, after:
•272 days from date of incident (24.04.2019);
• 270 days from formal arrest (26.04.2019);
• 232 days of grant of bail (03.06.2019); and
• 117 days of issuance of Show Cause Notice.
This, it is canvassed, evidently reflects that there is inordinate
delay of 272 days in passing of the impugned detention orders
from the date of the alleged incident. Therefore, the live-link
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by:DURGESH NANDAN
Signing Date:06.08.2021
19:10:22
between the alleged prejudicial activities and the impugned
detention orders stood snapped in the intervening 272 days.
Moreover, when the Petitioners had already been released on
bail on 03.06.2019, there is no justification for clamping a
detention order after 232 days from such release, especially in
the absence of any cogent material that indicates their
involvement in the alleged prejudicial activities since their
release on bail.
9. Learned Senior Counsel would further urge that the ground of
delay was first urged by the petitioners in the aforesaid writ
petitions filed at the pre-detention/pre-execution stage. At that
time, the respondents sought to explain the delay in the counter
affidavit as follows:-
26.09.2019 Investigation concluded and
culminated into Show Cause Notice.
2nd Week Oct.2019 Proposal for invoking COFEPOSA
was first 'mooted'.
1st Week Nov. 2019 Further overseas evidence was
received from Dubai.
02.01.2020 Proposal was further analysed.
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by:DURGESH NANDAN
Signing Date:06.08.2021
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13.01.2020 Proposal was put up to Central
Screening Committee (CSC).
14.01.2020 Recommendations of the CSC were
submitted to the Detaining Authority.
21.01.2020 Impugned Detention Order was
passed.
10. It is also submitted that the gap between October, 2019 and
January, 2020 was sought to be explained away by receipt of
overseas evidence from Dubai, purportedly in the month of
November 2019, as evident from the counter affidavit filed by
the respondents in the pre-execution writ petitions and the
dates extracted above. Even otherwise, vídé order dated
11.09.2020 passed by this Court, dismissing the pre-execution
writ petitions, the aspect of delay was dealt with in paragraphs
67-69 wherein this Court analysed the explanation of delay
given by the respondents. However, at that stage the petitioners
did not have the benefit of the impugned detention orders as
the same had not been served on the petitioners. Upon being
served with the impugned detention orders, the petitioners
learnt that any reference to overseas evidence from Dubai in
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by:DURGESH NANDAN
Signing Date:06.08.2021
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November, 2019 was conspicuously absent and no such
documents were placed before the Detaining Authority.
Instead, what emerges from the detention orders is that all the
material evidence, including overseas evidence, sought to be
used against the petitioners was already collected as early as
July, 2019.
11. It was further submitted by learned Senior Counsel for
petitioners that another aspect which became strikingly
noticeable to petitioners, which was not known to the
petitioners at the pre-execution stage, is that Mr. R.P. Singh
was all along aware of the case against the petitioners, at least
as early as 02.08.2019. The aspect of delay, therefore assumes
a different complexion. There is nothing in Section 3 or in the
scheme of the Act which suggests that the specially
empowered officer under Section 3 must act only on receipt of
a proposal of some other agency or "Sponsoring Authority". In
fact, the expressions "Sponsoring Authority" and "Detaining
Authority" find no mention in the statute.
Signature Not Verified
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12. Learned Senior Counsel would also urge that DRI Officers
are not empowered under Customs Act, in view of the
decision of the Hon'ble Supreme Court rendered in the case of
"Canon India Pvt. Ltd. Vs. Commissioner of Customs" dated
09.03.2021, which would render the Show Cause Notice dated
26.09.2019, as well as the proceedings emanating therefrom
non-est. The Hon'ble Supreme Court in Canon India (supra)
held Notification No.40/2012 dated 02.05.2012 issued by the
Central Board of Excise and Customs (hereinafter referred to
as 'CBEC') to be invalid and without authority of law. The
said Notification No.40/2012 purports to entrust DRI Officers
with functions and powers of Customs Officers under the
Customs Act. The Hon'ble Supreme Court has held that the
CBEC has no power under Section 2(34) of the Customs Act
to issue such a notification and such power could only have
been exercised by the Central Government under Section 6 of
the Customs Act. The effect and consequence of the judgment
in the case of Canon India (supra) is that the DRI Officers are
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not "Proper Officers" under the Customs Act as the said
Notification No.40/2012 is invalid, and resultantly non-est.
13. Consequently, DRI Officers are not properly and validly
authorized to exercise powers and functions of Customs
Officers under the various Sections mentioned in the said
Notification No.40/2012. More importantly for the present
case, the DRI Officers are not authorized under Sections 100,
103, 106, 106A and 110(1) and 110(3) of the Customs Act,
meaning thereby that DRI does not have any power of search,
seizure and confiscation of allegedly smuggled goods. Section
110(1) and 110(3) would reveal that only a "Proper Officer"
under the Customs Act can exercise the power of confiscation
of smuggled goods. Since Notification No.40/2012 has been
held to be invalid, DRI Officers were never authorized by law
to confiscate the allegedly smuggled goods. If the confiscation
in the present case is bad in law and without legal authority, no
case of smuggling can be foisted upon the petitioners. Even the
Show Cause Notice dated 26.09.2019 is bad in law as it is
based on a seizure and confiscation without authority. Since
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the confiscation under Sections 110(1) and 110(3) of the
Customs Act is bad in law, the goods so confiscated can no
longer be deemed to be smuggled goods in terms of Sections
111 and 2(39) of the Customs Act, and as a result the detention
of the petitioners under COFEPOSA, which essentially
emanates from seizure and confiscation without authority, is
also illegal and must be set aside.
14. It is furthermore submitted that retractions by co-detenus
were not considered and even rebuttals by DRI were
issued belatedly. On a perspicacious analysis of the impugned
detention orders it is revealed that the respondents rely heavily
on inculpatory statements recorded under Section 108 of the
Customs Act. Statements of the co-detenus are reproduced
throughout the impugned detention order. Petitioner Amit Pal
Singh's statements dated 25.04.2019, 04.09.2019 and
06.09.2019; Petitioner Gopal Gupta's statement dated
25.04.2019 and co-detenu Mohd. Nashruddin Khan's
statements dated 25.04.2019, 08.08.2019, 20.08.2019,
21.08.2019, 22.08.2019 and 03.09.2019 are reproduced
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extensively in the Grounds of Detention. Both the Petitioners
and the co-detenu retracted their statements and the retractions
are noted in the impugned detention order. The impugned
detention order further records that the DRI issued rebuttals to
the said retractions on 16.01.2020. It is pertinent to note here
that the manner in which the Detaining Authority has
discarded the retractions of the Petitioners and the co-detenus
shows complete non-application of mind. While heavy reliance
is placed on the inculpatory statements, the retractions are
discarded mechanically by noting that the same have been
rebutted by the DRI on 16.01.2020, while completely ignoring
the fact that the DRI did not rebut the retractions from May,
2019 to January, 2020, and even when it did so, it was done
conveniently 05 days prior to passing of the impugned
detention order. It is clear that the Rebuttal dated 16.01.2020
was issued by DRI for the sake of dealing with the retractions
in the impugned detention orders, whereas DRI had no real
intention to rebut the same for 8 months prior thereto.
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15. It is submitted that retractions by co-accused persons were
not placed before the Detaining Authority as in addition to
the statements recorded under Section 108 of the Customs Act
of the Petitioners and the co-detenu Mohd. Nashruddin Khan,
the impugned Detention Orders further rely on the inculpatory
statements of 02 more co-accused persons, namely Shri.
Vikram Bhasin and Shri. Mahesh Jain. Vikram Bhasin's
statements dated 26.04.2019, 27.04.2019, 23.05.2019,
24.05.2019 and 20.09.2019 recorded under Section 108 of the
Customs Act were reproduced in the impugned detention
orders as well as Mahesh Jain's statements dated 14.06.2019
and 15.06.2019. While the impugned detention orders rely
upon the statements of Vikram Bhasin and Mahesh Jain, their
subsequent retractions are not placed before the Detaining
Authority. The non-placement of retractions of co-accused,
whose inculpatory statements have been otherwise relied upon,
goes to the root of the matter and tends to vitiate the subjective
satisfaction of the Detaining Authority. Vikram Bhasin's
retraction dated 03.06.2019 was addressed to Mr. Manish
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Khurana, learned CMM, Patiala House Courts, New Delhi and
had the effect of retracting all his previous statements. The
DRI cannot claim it had no knowledge of the same as they
filed a reply dated 17.01.2020 - just 4 days prior to the passing
of the impugned detention orders dated 21.01.2020. Similarly,
Mahesh Jain's retraction dated 31.10.2019 was addressed to
the Additional Director General (Adjudication), DRI and has
the effect of retracting all prior statements. The DRI, which is
the Sponsoring Authority in the present case, was always
aware of the retractions issued by the co-accused persons and
ought to have placed the said retractions before the Detaining
Authority, especially if it placed on record the inculpatory
statements of such co-accused persons.
16. It was further submitted by the counsel for petitioners' that the
Detaining Authority while arriving at subjective satisfaction
has to satisfy itself with respect to propensity of the detenu to
continue indulging in prejudicial activity. For this purpose, all
facts and documents that are vital to consider the required
causal link between suspicion and preventive detention, by the
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Detaining Authority, must be placed before it and must also be
supplied to the detenu.
17. It has been argued on behalf of petitioners that IMNPL was put
under the Denied Entity List by the DGFT vídé order dated
26.06.2019, meaning thereby that IMNPL could no longer
import gold under Advance Authorisation Scheme and hence
there was no possibility of it misusing the said scheme. This is
essential as the entire basis of the detention of the petitioners is
the alleged misuse of Advance Authorisation as stated in
Grounds Nos.2 and 5 of the impugned detention orders. The
orders placing IMNPL under the Denied Entity List ought to
have been placed before the Detaining Authority as they are
vital documents, which was neither placed and nor considered.
18. It is also submitted that as aforesaid, IMNPL was put under
Denied Entity List by the DGFT. The DGFT took this measure
pursuant to a UO Note dated 21.06.2019 issued by the DRI to
the DGFT. This UO Note dated 21.06.2019 was also never
placed before the Detaining Authority and the subsequent fact
of IMNPL being put in the Denied Entity List was also not
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disclosed. Non-placement of a vital document such as the UO
Note dated 21.06.2019 which led to the company being put
under the Denied Entity List by the DGFT amounts to vitiating
the subjective satisfaction.
19. It was further submitted by the counsel for petitioners' that the
suspension order of Mr.Vikram Bhasin's--Customs
Jewellery Appraiser was not placed before Detaining
Authority. It is the case of the respondents that ''The role of
Vikram Bhasin was so crucial since without his collusion, the
smuggling of Gold could not have been possible". Vikram
Bhasin was suspended on 03.06.2019. Crux of the allegations
against the Petitioners was that they were smuggling gold
jewellery with the aid of the Customs Jewellery Appraiser.
However, the fact that the said Vikram Bhasin was under
suspension was not considered by the Detaining Authority as
the Suspension Order was never placed before it by the DRI.
20. It is further argued that Petitioner Amit Pal Singh's passport
was seized at the time of his arrest and was never released. The
order dated 28.08.2019 passed by the learned CMM, Patiala
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House Courts, New Delhi would reveal that the passport of
petitioner Amit Pal Singh was withheld on the request made by
the DRI. This fact was never placed before the Detaining
Authority, nor was the said order dated 28.08.2019.
21. Further, it is submitted that petitioners were granted bail vidé
order dated 03.06.2019 passed by the learned CMM, Patiala
House Courts, New Delhi. The impugned detention orders
were passed on 21.01.2020 i.e. after 232 days thereafter. When
the petitioners were on bail for such a long period, and there
was no material to indicate any prejudicial activity during such
period, the Detaining Authority ought to have considered the
post-bail conduct of the Petitioners while passing the detention
orders.
22. It has been argued on behalf of petitioners that findings
returned by the CESTAT in its order 13.11.2019 were ignored
by the respondents, as when IMNPL approached the CESTAT
against the order dated 04.10.2019 passed by the Additional
D.G. rejecting the prayer for provisional release of seized
goods; CESTAT passed an Order dated 13.11.2019 in favour of
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IMNPL directing release of all seized goods. Before returning
its findings, the CESTAT noted the requirements for duty-free
import of gold under the Advance Authorization Scheme and
the Export Exhibition Scheme. It was noted by the Tribunal
that IMNPL possesses Importer-Exporter Code and is entitled
to import upto 1,000 kgs of gold under the Advance
Authorization Scheme. The Tribunal further noted that under
the scheme of export exhibition, manufactured jewellery is
taken abroad after preparing invoices, filing shipping bills and
the jewellery is inspected by the customs and the photographs
of the said jewellery are kept under the seal of customs. The
Tribunal also observed that re-import of the jewellery exported
is duty free if done within 60 days of closing of the exhibition.
At the time of re-import, Customs authorities verify the
relevant particulars (export documents) and tally the
photographs of the jewellery with the re-imported jewellery.
The Tribunal observed that all supporting documents related to
jewellery such as assessed bills of entry, packing lists, export
documents and photographs with gate pass were in possession
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of petitioner Amit Pal Singh. The Tribunal held that the
Revenue Authority has failed to provide any cogent reason for
its refusal to provisionally release the goods. The Tribunal
further held that there exists no ground to hold that the seized
goods fall under the category of "prohibited goods" as the
Appellant is in possession of all legal documents necessary.
Accordingly, CESTAT ordered release of all the seized gold
jewellery, bars and articles.
23. While the CESTAT order dated 13.11.2019 is referred to in the
impugned detention order, it is submitted that apparently the
Detaining Authority has not applied its mind to the order and
makes only a fleeting reference to the same. Neither is the
reasoning given in the CESTAT order dealt with, nor does the
Detaining Authority apply its mind to the documents dealt with
by the CESTAT. Documents such as the Advance
Authorization Scheme, the Export Exhibition Scheme and
Customs Notification No.18/2015 dated 01.04.2015 which are
referred by the CESTAT in its order do not form part of the
Relied Upon Documents. The CESTAT order was challenged
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by DRI in CUSAA No.229/2019 before the High Court. The
High Court did not interfere with the order of release as far as
51 kgs of gold and 44.778 kgs of silver is concerned. Release
only with respect to 25,299.680 gms was restrained. However,
the order of the High Court in CUSAA No.229/2019 was
passed on 01.06.2020 i.e., after the passing of the detention
order dated 21.01.2020. As such, on the date of the passing of
the impugned detention orders, the CESTAT order was not
disturbed and ought to have been considered. A review bearing
Revision Petition No. 117/2020 against the order dated
01.06.2020 is pending before a Division Bench of this court.
24. It was further submitted by the counsel for petitioners' that the
Detaining Authority failed to appreciate that the petitioners are
merely employees of IMNPL. Once the license of the company
was put in Denied Entity List, there was no likelihood of the
petitioners continuing any prejudicial activity. This, despite the
Detaining Authority noting that the mastermind of the
conspiracy is some other person and the petitioners are merely
employees and have not acquired any unjust enrichment.
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25. It is also submitted that it is a matter of record that neither the
bail applications, nor the remand applications, nor the replies
to the bail applications and documents filed therein by the
petitioners/detenus have been placed by the Sponsoring
Authority before the Detaining Authority.
26. It is further argued that on a plain reading of Ground No.2 of
the Grounds of Detention it is reflected that while arriving at
its subjective satisfaction with respect to the need to detain the
petitioners, the Detaining Authority held that the petitioners
were evading payment of customs duty and the same
amounted to smuggling. However, the DRI in its Additional
Submissions dated 29.05.2019 filed in the bail proceedings had
categorically conceded that the present case was not one of
evasion of duty. This document was never placed before the
Detaining Authority and non-consideration of the same
amounts to vitiating the subjective satisfaction. The Additional
Submissions of DRI, just like the Bail Applications, ought to
have necessarily been placed before the Detaining Authority
by the Sponsoring Authority.
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27. It was further submitted by the counsel for petitioners' that
reliance has been placed by the Detaining Authority on the
case of M/s. Bullion LLP. While the Show Cause Notice dated
31.08.2018 in the case of M/s. Bullion LLP forms part of the
Relied Upon Documents, the documents listed in the said
Show Cause Notice including panchnamas etc. have not been
placed before the Detaining Authority. More importantly, there
is no mention of Petitioners Amit Pal Singh and Gopal Gupta
in para xxvi(a) relating to M/s. Bullion Line LLP. The said
Show Cause Notice is not issued to the Petitioners and has
nothing to do with the Petitioners. Further, the goods that were
seized were released on 19.01.2017 and the said fact has also
not been placed before the Detaining Authority. The
Respondents in the Counter Affidavit have stated that the
"...Panchnamas pertaining to the investigations in the cases of
M/s Bharti Gems or M/s Bullion Line LLP do not pertain to the
SA and therefore could not have been shared". Firstly, the
investigation is being conducted by DRI. Secondly, the
explanation that the DRI did not have access to documents is
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an abdication of the constitutional responsibility of the
Sponsoring Authority to place all relevant material before the
Detaining Authority.
28. Learned Senior Counsel would also urge that statements of the
petitioners and the co-detenu Mohd. Nashruddin Khan were
recorded in the case of Bharti Gems whilst in judicial custody.
However, the said statements were not placed before the
Detaining Authority. Further, the Show Cause Notice dated
30.08.2020 issued in the case pertaining to Bharti Gems has
been stayed by a Division Bench of Hon'ble Rajasthan High
Court vídé order dated 11.01.2021 in Writ Petition (Civil)
No.14008/2020.
29. Further, it is submitted that IMNPL issued a detailed
representation dated 08.05.2019 vidé email to the DRI seeking
release of its employees and seized goods. The representation
is a vital document as it explains the stand of the company
with respect to the transactions undertaken by it and offers a
defence on behalf of its detained employees. The said
representation has also not been placed before the Detaining
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Authority. The stand of the Petitioners is that the same is a
vital document and ought to have been placed and considered.
30. It was further submitted that by ld senior counsel appearing on
behalf of petitioners' there has been delay in deciding their
representation by Central Government. The Petitioners
were detained on 01.10.2020. Petitioner Amit Pal Singh filed
representations dated 16.10.2020 with the Detaining Authority
and with the Central Government (D.G., CEIB). Similarly,
petitioner Gopal Gupta filed representations dated 20.10.2020.
The Detaining Authority rejected the respective representations
made by the petitioners vídé Memorandum dated 03.11.2020.
D.G. CEIB, however, did not deal with the respective
representations of the detenus expeditiously and instead made
a Reference dated 03.11.2020 in terms of Section 8(b)
COFEPOSA to the Central Advisory Board. The Central
Advisory Board gave its opinion that there existed sufficient
grounds for the detention of the petitioners. Based arguably on
the opinion of the Central Advisory Board, the Central
Government on 21.12.2020, in exercise of powers under
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Section 8(f) of COFEPOSA, confirmed the detention order
dated 21.01.2020. Representations of the petitioners were
rejected vide Memorandum dated 24.12.2020. Peculiarly, the
order confirming the detention was passed on 21.12.2020 i.e.,
03 days prior to rejection of the representations. This shows
complete non-application of mind by the Central Government
while dealing with the petitioners' Representations.
31. Learned Senior Counsel would further urge that by not
deciding the respective representations of the Petitioners
immediately and referring the same to the Advisory Board, the
Central Government is guilty of inordinate and unexplained
delay. In the case of Amit Pal Singh and Gopal Gupta, there is
an inordinate delay of 69 and 65 days, respectively by the
Central Government in dealing with their Representations.
Further, the reliance placed by the Central Government on the
case of Golam Biswas vs. UOI & Anr. reported as (2015) 16
SCC 177 is manifestly erroneous and highly misplaced. Ratio
laid down in Golam Biswas (supra) is not an authority for the
proposition that the Central Government is exempt from
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deciding the detenu's representation expeditiously. Golam
Biswas (supra) only lays down that the Central Government
should not reject the detenu's representation during the
pendency of proceedings before the Advisory Board. This does
not mean that the Central Government is exempt from
expeditious disposal of the detenus representation or that it can
sit over the same till such time it makes a reference to the
Advisory Board, even though it had sufficient time and
opportunity to deal with it prior to making the reference.
32. It is also submitted that in the present case, the representations
of petitioners Amit Pal Singh and Gopal Gupta were filed on
16.10.2020 and 20.10.2020, respectively. It is pertinent to note
that as per Section 8(b) of COFEPOSA, the reference to the
Advisory Board has to be made within 5 weeks from the date
of detention. Therefore, the Central Government had to make
the reference to the Advisory Board on or before 05.11.2019.
Admittedly, the reference was made on 03.11.2019. However,
the representations dated 16.10.2019 and 20.10.2019 were
filed well before the reference had to be made and the Central
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Government had 20 days to decide Petitioner Amit Pal Singh's
representation (16th October to 05th November) and 16 days to
decide petitioner Gopal Gupta's representation (20th October to
05th November), which was sufficient time to deal with the
same before making the reference.
33. It is further argued that there has been complete and utter non-
application of mind by the Detaining Authority while passing
the impugned detention orders which is further evident from
the fact that the grounds of detention in the case of the
petitioners are identical to the grounds of detention of another
detenu in an entirely different case. A person named Happy
Arvind Kumar Dhakad came to be detained vidé detention
order dated 17.05.2019, also passed by Mr. R.P. Singh. On a
comparison between the impugned detention orders and the
detention order dated 17.05.2019 of Happy Arvind Kumar
Dhakad, it is clear that the same are identical, barring a few
differences in names and references etc. The petitioners have
already filed the detention order dated 17.05.2019 passed in
the case of Happy Arvind Kumar Dhakad along with a
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comparison of the grounds of detention in the impugned
detention orders dated 21.01.2020. The comparison makes it
clear that the entire exercise of passing the impugned detention
orders is mechanical as the grounds have been lifted from the
grounds of an altogether distinct case. Such a blatant copy-
paste job by the Detaining Authority shows non-application of
mind.
34. In order to support and buttress the petitioners' exhaustive oral
submissions, the following decisions have been pressed into
service:-
(i) Ankit Ashok Jalan v. Union of India & Ors. reported
as (2020) 16 SCC 127.
(ii) Golum Biswas v. Union of India reported as (2015) 16
SCC 177.
(iii) Vimal Ashok Dhakne v. State of Maharashtra being
Crl. Appeal No. 163 of 2012
(iv) M/s Canon India Private Limited v. Commissioner of
Customs reported as 2021 SCC OnLine SC 200.
(v) Daljit Singh Sandhu v. Union of India reported as
(1993) 51 DLT 667.
(vi) Satnam Singh v. Union of India reported as 1992
SCC Online Del 328.
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(vii) Saeed Zakir Hussain v. State of Maharashtra reported
as (2012) 8 SCC 233.
(viii) Pooja Batra v. Union of India reported as 2009 5 SCC
(ix) Union of India v. Happy Dimple Dhakkad reported as
2019 (20) SCC 609.
(x) Madasamy v. Pasumponpandian reported as 2016
SCC OnLine Mad 20650.
(xi) Jeganath v. Principal Secretary reported as 2017 SCC
OnLine Mad 27423.
(xii) Avtar Singh v. Union of India & Ors. reported as 2013
SCC OnLine Del 3806.
(xiii) A.Sowkath Ali v. Union of India reported as (2000) 7
SCC 148.
(xiv) P. Saravanan v. State of Tamil Nadu reported as
(2001) 10 SCC 212.
(xv) Ashadevi v. K Shivraj reported as (1979) 1 SCC 222.
(xvi) Union of India v. Ranu Bhandari reported as (2008)
17 SCC 348.
(xvii) Sahil Jain v. Union of India reported as 2014 (140)
DRJ 319.
(xviii) Husainbi Abdullah v. State of Maharashtra reported
as 2013 SCC OnLine Bom 160.
(xix) Gimik Piotr v. State of Tamil Nadu reported as (2010)
1 SCC 609.
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(xx) Moulana Shamshunissa & Ors. V. Additional Chief
Secretary & Ors. reported as (2010) 15 SCC 72.
(xxi) Rajesh Gulati v. State of NCT of Delhi reported as
(2007) 7 SCC 233.
(xxii) Naresh Kumar Jain v. UOI reported as 2011 SCC
OnLine Del 442.
(xxiii) T.A. Abdul Rahman v. State of Kerela reported as
(1984) 4 SCC 741.
(xxiv) Ahmad Nassar v. State of Tamil Nadu reported as
(1999) 8 SCC 473.
(xxv) Order dated 12.04.2021 passed by the Hon'ble High
Court of Delhi in W.P.(Crl.) No.821/2021.
ARGUMENTS ON BEHALF OF THE RESPONDENTS: -
35. Per Contra, Mr. Amit Mahajan, learned Central Government
Standing counsel appearing on behalf respondent No.1 and
respondent No.2 would submit that impugned detention orders
dated 21.01.2020 passed by the Competent Authority under
Section 3 (1) of the COFEPOSA are legal and constitutional
and the same have been passed by the Competent Authority
with due application of mind and after arriving at the requisite
subjective satisfaction; based on the sufficient material facts
and circumstances of the case.
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36. It is further argued that the Detaining Authority is a different
and independent from the Sponsoring Authority and that
before issuing the impugned detention order, the Detaining
Authority has applied its mind fully independent of the
Sponsoring Authority. Further, before the proposal is placed
before the Detaining Authority, the Central Screening
Committee (CSC) consisting of senior officers from different
Miniseries/Departments screen the entire proposal and make
its recommendations; it is only after the recommendation made
by the CSC, the proposal goes to the Detaining Authority. It is,
thus, evident that there are three different and independent
authorities entrusted with the task to examine the incriminating
material and facts available against the proposed detenu. The
Detaining Authority has to arrive at his subjective satisfaction
fully independent of the prosecution proceedings initiated by
the Sponsoring Authority. The Detaining Authority passed the
detention orders upon satisfying itself about the propensity of
the proposed detenu to indulge in prejudicial activities in
future and it has nothing to do with the prosecution
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proceedings. Hence, the allegation of malice in issuing the
impugned order is fundamentally unfounded, wrong,
misconceived and untenable.
37. It was further submitted by the counsel for respondent that the
detenu was an employee of IMNPL, who indulged in
misusing the Advance Authorization Scheme through circular
movement of gold jewellery exported under the guise of
exhibition from India through hand-carry and subsequently
smuggled gold jewellery back into India under the garb of re-
importing the said jewellery without the required documents
and permissions and posed an imminent and insidious threat to
the economic security of the country.
38. Further, it is submitted that the primary allegation of the
petitioners that Mr. R.P Singh was not only aware but also took
an active part in the investigation and issued detailed
communications with respect to ongoing investigation vídé
letter dated 02.09.2019, is misleading and frivolous, since
CEIB is the nodal agency and as such the information was
shared with the DGFT for necessary action in the routine
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course. Also, the detention order passed against the petitioner
and other co-detenus under Section 3 of the COFEPOSA was
based on Mr. R.P Singh's independent evaluation and
subjective satisfaction, as an officer of the Detaining Authority.
39. It has been argued on behalf of respondents that the
respondents have followed the law, in letter and spirit, while
issuing the impugned detention order. It was submitted that an
order of preventive detention may be made with or without
prosecution and in anticipation or after discharge or even
acquittal. The pendency of prosecution is no bar to an order of
preventive detention.
40. Further, it is submitted that preventive detention is a
"suspicious jurisdiction" i.e. jurisdiction based on suspicion
and an action is taken "with a view to preventing" a person
from acting in any manner prejudicial to certain activities
enumerated in the relevant detention law and the Detaining
Authority has issued the detention order after it had arrived at
the subjective satisfaction that the detenu had to be
preventively detained, which has been elaborated in the
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grounds of detention. Similarly, the allegation of ill-treatment,
custodial violence, etc., ought not to affect the detention order.
41. It is further argued that without prejudice, all the relevant
documents and vital documents were placed before the
Detaining Authority and only after arriving at its subjective
satisfaction, was the impugned detention order passed.
42. It was further submitted by the counsel for the respondent that
that only copies of documents on which the impugned
detention order is primarily based are required to be supplied
to the detenu and not any and every document. Mere reference
of certain instances for the purposes of completing the
narration would not entitle the detenu to copies of such
documents. It is submitted that all the relevant and vital
documents/material was placed by the Sponsoring Authority
before the Detaining Authority, the perusal of which led to the
subjective satisfaction of the Detaining Authority in passing
the detention order.
43. It is also submitted that contention of the petitioner that there
was delay of 09 months in passing of the detention order, has
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previously been agitated by the petitioner and has been dealt
by this Court in W.P (Crl.) No.786/2020 in the case titled
'Mohd. Nashruddin Khan v. Union of India & Ors.' decided on
11.09.2020 wherein this Court categorically observed that
there was no delay.
44. It has been argued on behalf of respondents that in so far as the
allegation qua overseas evidence is concerned, the authorities
during investigation are at liberty to gather all evidence
pertaining to the offence, and by no stretch of imagination can
gathering and collating of information by the Sponsoring
Authority be held to be the cause of delay in passing of the
detention order.
45. It is also submitted that as far as the averment regarding
retractions filed by detenu Amit Pal Singh is concerned, the
detenu did not file any retraction at the time of first production
before the Judicial Magistrate. The retraction was filed
subsequently and was general and vague in nature and was
filed as an after-thought. The subsequent retractions have
already been duly rebutted and are on the record of the learned
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CMM, Patiala House Courts, New Delhi. Further, the detenu
has time and again relied upon the observations made in the
bail order dated 03.06.2019 made by the learned CMM, Patiala
House Courts, New Delhi, including in his challenge to the
detention order at the pre-execution stage vídé W.P.(Crl.)
No.1009/2020. However, it is submitted that the granting of
bail by no stretch of imagination can be inferred as absolving
the proposed detenu of the alleged offence. It is also trite that a
Court does not go deep into the merits of the matter while
considering an application for bail and only forms a prima
facie opinion; however, the merits of the matter are to be tested
at the stage of trial. It is further submitted that by virtue of the
COFEPOSA the respondents are vested with powers to issue
detention order against the petitioner. It is further submitted
that grant of bail or its denial is not a ground for quashing of
the detention order as long as the said fact is taken note of by
the Detaining Authority and subjective satisfaction is arrived at
as to the propensity of the person to indulge in prejudicial
activities.
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46. It is further argued that the contention of non-consideration of
other documents/material cannot be a ground for vitiating the
detention order. As sufficient documents and materials were
placed before the Detaining Authority and upon considering
the individual role of the petitioner, the Detaining Authority
satisfied itself as to his continued propensity and his
inclination to indulge in the act of smuggling in a planned
manner to the detriment of the economic security of the
country, which made it necessary to prevent the petitioner from
smuggling goods, by detaining him.
47. It is also contented that delay, either in passing the detention
order or execution thereof, is not fatal except where the same
remains unexplained. Even in a case of undue or long delay
between the prejudicial activity and the passing of a detention
order, if the same is satisfactorily explained and a tenable and
reasonable explanation is offered, the order of detention is not
vitiated.
48. Further, it is submitted that as much emphasis has been laid by
the petitioner upon the findings of the CESTAT order which
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has already been modified and subsumed by the judgment
dated 01.06.2020 rendered by this Court in CUSAA
No.229/2019, wherein this Court has held that an order of
provisional release of the seized gold, gold jewellery and silver
is, at all times, an interlocutory exercise, and does not finally
adjudicate on any liability.
49. It was further submitted by the counsel for respondent that the
contention of the petitioner that the communication from FCA,
Dubai, in November, 2019 was not included in the Relied
Upon Documents, is wrong, baseless and misleading. As
regards the contention relating to guidelines issued by the
department itself, it is submitted that the relevant guidelines
are only executive/ internal instructions for use by the
department officer and the same have been complied with in
the instant case in addition to all the statutory and
constitutional provisions.
50. It is also submitted that as far as rebuttals to the retraction filed
by the detenu are concerned, no retraction was filed or made
by the detenu at the time of his arrest. Only on 27.04.2019 was
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the retraction filed, which was duly rebutted by the DRI on
29.05.2019 by filing additional submissions before the learned
CMM, Patiala House Courts, New Delhi. It is noted that the
rebuttal clearly mentions that the retraction made by the detenu
was general and vague and already stands rebutted vidé the
evidence contained in the Show Cause Notice dated
26.09.2019 duly served upon the detenu. Therefore, no
prejudice has been caused to the detenu.
51. It has been argued on behalf of Respondents that persons
engaged in smuggling activities pose a serious threat to the
economy and thereby to the security of the nation; and as a
precaution no hard and fast rule can be precisely formulated
that would be applicable under all circumstances; rather it
follows that the test of proximity is not a rigid or mechanical
test by merely counting number of months between the
offending acts and order of detention.
52. Lastly, it is also submitted that there was no inordinate delay in
deciding the representation of the petitioners by the Central
Government as the representation dated 16.10.2020 was
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received from the petitioner through his counsel in the office
of the D.G., CEIB on 16.10.2020 itself and the requisite
information/comments of the Sponsoring Authority were
sought on 19.10.2010 on the said representation. The requisite
information/comments of the Sponsoring Authority were
received on 02.11.2020 and thereafter the matter was referred
to the Advisory Board on 03.11.2020. The answering
respondents on 02.12.2020 sent copies of the representation of
the detenu to the Advisory Board alongwith the comments on
the representation of the detenu, prepared by the Sponsoring
Authority. The Advisory Board on 14.12.2020 opined that
there exists sufficient cause for detaining the detenu in
pursuance to the Detention Order dated 21.01.2020. Thereafter
the opinion of the Advisory Board was submitted for necessary
approval of the Hon'ble Finance Minister on behalf of the
Central Government on 15.12.2020. The approval was
received on 21.12.2020 and thereafter the representation was
disposed on 23.12.2020 and communicated to the petitioner on
24.12.2020. Thus, there was no inordinate delay in deciding
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the representation of the petitioners by the Central
Government.
53. In support of his arguments, Mr. Amit Mahajan, learned CGSC
appearing on behalf of the respondent has relied upon the
following decisions: -
(i) Union of India & Ors. v. Muneesh Suneja reported as
(2001) 3 SCC 92).
(ii) Licil Antony v. State of Kerala & Anr. reported as
(2014) 11 SCC 326.
(iii) T.A.Abdul Rahman vs State of Kerala, reported as
(1989) 4 SCC 741.
(iv) Mohd. Nashruddin Khan v. Union of India & Ors in
W.P. (Crl) 786/2020 decided on 11.09.2020
(v) Mohd. Nashruddin Khan v. Union of India & Ors in
W.P.(Crl) 786/2020, decided on 11.09.2020.
(vi) Radhakrishnan Prabhakaran v. State of Tamil Nadu
& Ors reported as (2000) 9 SCC 170.
(vii) Union of India & Anr. v. Dimple Happy Dhakad
reported as (2019) SCC Online SC 875.
(viii) Haradhan Saha v. The State of West Bengal & Ors.
reported as (1975) 3 SCC 198.
(ix) State of Maharashtra & Ors. v. Bhaurao Punjabrao
Gawande reported as (2008) 3 SCC 613.
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(x) Madan Lal Anand v. UOI & Anr reported as (1990) 1
SCC 81.
(xi) Kamarunnisa v. Union of India & Anr. reported as
(1991) 1 SCC 128.
(xii) Union of India v. Yumnam Anand M. Alias Bocha
Alias Kora Alias Suraj & Anr. reported as (2007) 10
SCC 190.
(xiii) Golam Biswas v. Union of India & Anr reported as
(2015) 16 SCC 177.
(xiv) Mohammad Seddiq Yousufi v. Union and Anr.
decided on 21.01.2020.
(xv) Sheetal Manoj Gore v. State of Maharashtra & Ors
reported as (2006) 7 SCC 560.
(xvi) Maya Ajit Satam v. The State of Maharashtra
reported as 2012 (114) BOMLR 2969.
(xvii) Shabnam Arora v. Union of India and Ors reported as
2017(357)ELT 127(Del.).
54. These petitions were heard at great length by us and extensive
submissions were put forth by learned Senior Counsel
appearing on behalf of the parties, who have also filed detailed
written submissions. Therefore, we have taken utmost care in
taking note of all the rival contentions and the principles of
law attracted for adjudication, in writing our considered
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decision, because of which, it has not been possible to write a
brief judgment.
DISCUSSION AND CONCLUSION:-
55. Having heard learned counsel appearing on behalf of the
parties and after due consideration of the rival submissions in
the context of the facts and circumstances on record, as well as
the relevant provisions of law and the decisions relied upon by
the parties; and having perused the material on record,
including the pleadings, the detailed written submissions filed
on behalf of the parties and the original file, the following
issues arise for consideration in these proceedings:-
a. Whether the Detaining Authority acted independently
and without any bias, whilst rendering the impugned
orders of detention;
b. Whether the impugned orders of detention passed are
bad in law and vitiated on the ground of inordinate
delay;
c. Whether the impugned detention orders are vitiated on
the ground of non-application of mind;
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d. Whether the detaining authority has arrived at its
subjective satisfaction without properly appreciating
and satisfying itself qua the propensity of the detenu to
continue indulging in prejudicial activities;
e. Whether there has been delay on the part of the Central
Government in deciding the representation filed by the
detenus; and lastly
f. Whether the detention orders stand vitiated owing to
the reason that the grounds stated therein have been
lifted from the grounds taken in an entirely different
case?
56. Insofar as the first issue, as to whether the Detaining Authority
acted independently and without any bias whilst passing the
impugned orders of detention, is concerned; we have
considered the rival submissions made before us in the
backdrop of the original records and material placed before us
in the present proceedings. We have also considered the
judgment dated 11.09.2020 passed by this Court at the pre-
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detention stage in W.P.(Crl.) No.1009/2020 and W.P.(Crl.)
No.1019/2020.
57. Whilst declining to entertain the aforesaid petitions at the pre-
execution stage, this Court observed as follows:-
"There is nothing produced before us by the
petitioners to show that the Detaining Authority
had any interaction with either of these petitioners,
or in relation to their respective cases, before he
passed the Detention Orders against each of them.
There is absolutely no material placed on record by
the petitioners to justify the claim of either malice in
fact, or in law, against the members of the Central
Screening Committee, or the Detaining Authority."
58. The petitioners have in the course of the present proceedings
placed on record, by way of their rejoinder affidavits, a letter
dated 02.09.2019 addressed by Mr. R.P. Singh, Joint Secretary
(COFEPOSA) to the DGFT, the opening paragraph of which
reads as under:-
"This has reference to a letter bearing DR/HQ-
GI/338/VI/Enq-2/ENT-NIL/2019/2835 dated
02.08.2019, in the matter of a case of misuse of hand
carry & exhibition provision of the Foreign Trade
Policy (FTP) in respect of precious Metals &
Jewellery and Advance Authorization Scheme,
received in the Bureau from Directorate of Revenue
Intelligence.
2. It has been reported that a person was intercepted by
DRI at IGI airport on 24.04.2019 and found in
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possession of 51.172 kg of assorted gold
jewellery......"
The aforesaid letter concludes with the following directions:-
"9 ......since the case involves huge revenue
implication/fraud angle and has multi-agency
ramifications, it is requested that the Bureau may be
given periodic updates in the matter so that effective
coordination in the investigation may be achieved."
59. It is pertinent to observe here that the aforesaid letter predates
the detention order dated 21.01.2020 by approximately four
and half months.
60. From a plain reading of the said communication dated
02.09.2019, it is clear beyond doubt that Mr. R.P. Singh, who
passed the detention order, was actively involved in the
investigation, which was being conducted into the cases
against the petitioners, much prior to the passing of the
detention order by him. Mr. R.P. Singh, in his letter dated
02.09.2019, elaborately summarized the specifics of the
investigation, which was initiated by the DRI in the matter
pertaining to the petitioners regarding the case of misuse of
hand-carry and exhibition provisions of the FTP, in respect of
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the precious Metals and Jewellery and Advance Authorization
Scheme.
61. In this regard, it is observed that the respondents have not
disputed the contents of the aforesaid letter or the circumstance
that Mr. R.P. Singh was the author of the said communication.
However, the respondents have in their affidavits dated
10.02.2021, taken the stand that the said letter dated
02.09.2019 was authored by Mr. R.P. Singh ".......while
working in the additional capacity of other vertical i.e.
Economic Intelligence of the CEIB....."
62. The petitioners have refuted the said stand by urging that no
such distinction is discernible from the said letter itself. It is
further submitted by them that in the said affidavit dated
10.02.2021, the respondent has also admitted that the CEIB is
headed by a Director General, who is assisted by one Joint
Secretary, designated as J.S. (COFEPOSA). Thus, there is no
manner of doubt that the letter dated 02.09.2019 is signed by
Mr. R.P. Singh, in his capacity as Joint Secretary and not in
any other capacity. In this regard, it is also the submission of
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the petitioners that Mr. R.P. Singh himself filed an affidavit
dated 26.02.2021, in CONT. CAS (C) No.84/2021, wherein he
rebutted the facts stated in the affidavit dated 10.02.2021.
63. In view of the above, upon a perusal of the documents placed
before us, we have no hesitation in holding that Mr. R.P. Singh
was actively involved in the subject investigation and was
closely monitoring the same with different agencies, as early
as on 02.09.2019.
64. It is, therefore, irrefutable that the Detaining Authority had
prior interaction with the petitioners' case. At this juncture, we
must observe that this Court while rendering the judgment
dated 11.09.2020 admittedly did not have the benefit of
considering the said letter dated 02.09.2019.
65. We are thus of the considered view, as submitted on behalf of
the petitioners, that Mr. R.P. Singh was actively involved in the
case pertaining to the detenus for a long period, prior to the
passing by him of the impugned detention orders; and was
admittedly coordinating the investigation undertaken by the
competent agencies in that regard.
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66. The dual role played by Mr. R.P. Singh - first, in the Economic
Intelligence vertical of CEIB (as claimed by the respondents)
during the active investigation; and second, as J.S.
(COFEPOSA), in passing the impugned Detention Orders,
goes to the root of the matter and defeats the very purpose of
appointing a "specially empowered" officer under Section 3(1)
of the COFEPOSA, whose satisfaction, jurisprudentially, must
be independent and free from any bias or predisposition. In
our opinion, the test to be applied for bias or predisposition is
that of 'identity of intellectual apparatus', namely, whether the
person who passed the detention order, purporting to act as the
'specially empowered' human agency, has dealt with the same
matter prior to that in any other capacity. It is of no
consequence to say that the same person, with the same
intellectual apparatus, acted under a different official
designation or in a different official capacity. Therefore, the
issue of a pre-determined approach and bias, while passing the
impugned orders of detention, is writ large in the instant case;
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and as such, the subjective satisfaction of the Detaining
Authority in the present case stands vitiated.
67. In our view, the powers conferred under Section 3(1) of the
COFEPOSA have not been complied with independently in the
present case. We are also in agreement with the submissions
made by learned Senior Counsel in this behalf that, there is
nothing in Section 3 of the COFEPOSA or in the scheme of
the Act, which suggests that the especially empowered officer
must act only on receipt of the proposal of some other agency
or "Sponsoring Authority". In fact the expression "Sponsoring
Authority" and "Detaining Authority" find no mention in the
statute.
68. In this behalf, it is therefore observed, that there was nothing
that prevented Mr. R.P. Singh, whilst acting as J.S.
(COFEPOSA), from passing the impugned orders of detention
at the first opportunity. Resultantly, in our view, the argument
of pre-determined approach and bias stands established in the
present case.
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69. Our view is elucidated appositely by the decision of the
Hon'ble Madras High Court in Madasamy vs. Secretary to
Govt. & Ors., reported as 2016 SCC OnLine Mad 20650 and
in particular paragraphs 41 to 43 of the said report, wherein it
was observed as under:-
"41. The Detaining Authority should act independently
and with an open mind. He should not prejudge the
issue even before considering the materials
produced before him by the sponsoring authority.
42. In the subject cases, it is clear that the
Commissioner of Police actively took part in the
process of sponsoring the case of the detenus for
detention. The affidavits of the sponsoring officers
were attested by the Commissioner of Police by
sitting in the arm-chair of the Detaining Authority.
He was, therefore, in the know of things, even
before the commencement of statutory proceedings
for detention. In short, the Commissioner of Police
himself was part of the team of complainants
otherwise called as sponsoring authorities.
Thereafter, he turned the chair and acted in a
different capacity as the Detaining Authority. The
sponsoring authority and Detaining Authority are
practically one and the same in all these matters.
43. The active participation of the Detaining Authority
in the process of sponsoring the name of the
detenus for detention would go to the root of the
matter and, therefore, is sufficient to set aside the
orders of detention on the ground of
predetermination. We are, therefore, of the view
that the detention orders are unsustainable in law."
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70. To the similar effect are the findings recorded in the judgment
of the Madras High Court in Jeganathan @ Jegan vs.
Secretary to Govt. & Ors., reported as 2017 SCC OnLine
Mad 27423.
71. Insofar as the second issue whether the orders of detention are
bad in law and vitiated on the ground of inordinate delay is
concerned, our attention was invited on behalf of the petitioner
to the Chart of Events placed on record, in conjunction with
the dates thereof, which preceded the passing of the detention
orders.
72. It is the petitioners' submission that there was inordinate and
unexplained delay of 272 days in passing the impugned
detention orders from the date of the alleged initial incident.
73. In this regard, it is submitted on behalf of the petitioners that
the respondent had sought to justify the delay before this Court
at the pre-execution stage by contending that overseas
evidence had been received from Dubai in the first week of
November, 2019 and that the proposal for detention was
resultantly analysed on 02.01.2020, which was then put-up
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before the Central Screening Committee on 13.01.2020 and
after recommendation of the Central Screening Committee on
14.01.2020, the impugned orders of detention were passed on
21.01.2020; and that therefore, there was no delay in passing
the same.
74. The respondents at the post-execution stage have taken the
stand that since the aspect of delay was already considered by
this Court and rejected at the pre-execution stage, it is no
longer open to the detenus to re-agitate the same.
75. The respondents have alternatively submitted that the plea of
delay cannot be taken when the same is satisfactorily
explained, as in the present case.
76. The petitioners have sought to counter the said arguments on
behalf of the respondents that the overseas evidence from
Dubai was received in the first week of November 2019, by
submitting that there is nothing on record to indicate or
substantiate the said assertion. It is further stated by them that
it is only upon the receipt of the detention orders that the
petitioners became aware that the reference to overseas
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evidence from Dubai, which was ostensibly received by the
DRI in November 2019, was conspicuous by its absence in the
detention orders; and no material or documents in this regard
were placed before the Detaining Authority. As a matter of
fact, what emerges from the detention orders, is the position
that all the material evidence, including the purported overseas
evidence, sought to be relied upon against the petitioners, had
already been collected as early as in July 2019, as is clear from
the record, and had already culminated into the issuance of the
Show Cause Notice dated 26.09.2019. Therefore, it is
apparent that the stand taken by the respondents qua the
receipt of overseas evidence from Dubai in November 2019
was merely window-dressing, used to cover-up the substantial
delay that transpired from the time of issuance of the said
Show Cause Notice dated 26.09.2019 to the proposal of
detention being issued in January, 2020 and that the same is
specious and untenable. In these circumstances, the question
of delay assumes relevance and is germane and requires de
novo consideration by this Court.
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77. Having perused the impugned order of detention as well as the
grounds of detention, it is observed that although it was urged
before this Court by the respondents at the pre-execution stage
about the overseas evidence received from Dubai in
November, 2019; however, no reference to such evidence is to
be found in the impugned detention orders.
78. We are, therefore, of the view that in the absence of any
mention of such overseas evidence in the subject detention
orders, the same cannot be considered as germane in order to
satisfactorily explain the delay occasioned in passing the
impugned orders of detention.
79. This Court while passing the said judgment dated 11.09.2020
had proceeded on the basis of the stand taken by the
respondents that gathering of overseas evidence had delayed
the issuance of the subject detention orders. However, since in
the post-execution proceedings, the respondents have failed to
even cite or rely upon the purported overseas evidence
collected; nor did they place any such evidence before the
Detaining Authority, the respondents have failed to explain
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away the delay on that count. This Court is therefore obliged to
re-consider the issue of delay at the post-execution stage in the
present proceedings.
80. In view of the facts and circumstances elaborated hereinabove
and the judicial pronouncements on the issue, to the effect that
the Court can interfere with the orders of detention on the
ground of inordinate and unexplained delay, a fortiori we are
of the view that there has been a delay in passing the
impugned orders of detention. As a result, in the absence of a
satisfactory explanation, the inordinate delay leads to snapping
of the live and proximate link and direct nexus between the
alleged prejudicial activity and any immediate need to detain
the petitioners.
81. In this behalf, it is incumbent upon us to emphasise the dictum
of the decisions of the Hon'ble Supreme Court in the
following cases:-
a) In Saeed Zakir Hussain Malik vs. State of Maharashtra &
Ors., reported as (2012) 8 SCC 233 and in particular
paragraphs 22 to 28 thereof, the Hon'ble Supreme Court
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whilst considering the question of delay, in relation to
detention orders, observed as follows:-
"22. In Rajinder Arora v. Union of India [(2006) 4 SCC
796 : (2006) 2 SCC (Cri) 418] this Court considered
the effect of passing the detention order after about
ten months of the alleged illegal act. Basing reliance
on the decision in T.A. Abdul Rahman [(1989) 4 SCC
741 : 1990 SCC (Cri) 76] the detention order was
quashed on the ground of delay in passing the same.
xxxx xxxx xxxx xxxx
xxxx xxxx xxxx xxxx
27. As regards the second contention, as rightly pointed
out by the learned counsel for the appellant, the delay
in passing the detention order, namely, after 15
months vitiates the detention itself. The question
whether the prejudicial activities of a person
necessitating to pass an order of detention is
proximate to the time when the order is made or
the live link between the prejudicial activities and
the purpose of detention is snapped depends on the
facts and circumstances of each case. Though there
is no hard-and-fast rule and no exhaustive guidelines
can be laid down in that behalf, however, when there
is undue and long delay between the prejudicial
activities and the passing of detention order, it is
incumbent on the part of the court to scrutinise
whether the detaining authority has satisfactorily
examined such a delay and afforded a reasonable
and acceptable explanation as to why such a delay
has occasioned.
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28. It is also the duty of the court to investigate
whether causal connection has been broken in the
circumstance of each case. We are satisfied that in
the absence of proper explanation for a period of 15
months in issuing the order of detention, the same has
to be set aside. Since, we are in agreement with the
contentions relating to delay in passing the detention
order and serving the same on the detenue , there is no
need to go into the factual details."
b) In T.A. Abdul Rahman vs. State of Kerala and Others, reported
as (1989) 4 SCC 741, the Hon'ble Supreme Court has
elaborated on the issue of when unexplained delay vitiates the
detention order by observing as follows:-
"10. The conspectus of the above decisions can be
summarised thus: The question whether the
prejudicial activities of a person necessitating to pass
an order of detention is proximate to the time when
the order is made or the live-link between the
prejudicial activities and the purpose of detention is
snapped depends on the facts and circumstances of
each case. No hard and fast rule can be precisely
formulated that would be applicable under all
circumstances and no exhaustive guidelines can be
laid down in that behalf. It follows that the test of
proximity is not a rigid or mechanical test by merely
counting number of months between the offending
acts and the order of detention. However, when there
is undue and long delay between the prejudicial
activities and the passing of detention order, the court
has to scrutinise whether the detaining authority has
satisfactorily examined such a delay and afforded a
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tenable and reasonable explanation as to why such a
delay has occasioned, when called upon to answer and
further the court has to investigate whether the causal
connection has been broken in the circumstances of
each case."
82. In view of the ratio decidendi of the above extracted decisions,
we are of the view that in the facts and circumstances of the
present case, the causal connection between the alleged
prejudicial activities of the detenus and the necessity of the
passing orders of detention qua the petitioners stands broken.
83. We hasten to add that whilst arriving at this conclusion, we
have given our careful consideration to the judgment relied
upon by the respondents on the question of delay in issuing the
orders of detention. In this behalf, we observe that the reliance
placed by the respondents on the decision in the case of Union
of India vs. Muneesh Suneja, reported as (2001) 3 SCC 92,
does not come to the aid of the respondents, inasmuch as, that
was a case where the detention order was quashed by the High
Court at the pre-detention stage and consequently, the Supreme
Court observed that the same was not a fit case for the
issuance of any writ of habeas corpus but for certain other
types of reliefs and, therefore, the matter had been
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examined as an ordinary writ petition. In this behalf, the
Hon'ble Supreme Court held as under in the concluding
paragraphs:-
"In addition, we may also notice that the order made
by us will not prejudice the interest of the respondent
that in the event the said order of detention is given
effect to, it is open to the respondent to raise all
grounds as are permissible in law notwithstanding
what we may have observed in the course of this
order."
84. A plain reading of the paragraphs above extracted leaves no
manner of doubt that the detention order may be quashed at the
post execution stage, even though it has not been quashed at
the pre-detention stage. It leads to but one inescapable
conclusion that considerations while examining the validity of
detention order at post-detention stage can be different from
the considerations that obtain at the time of examining such an
order at the pre-detention stage.
85. The respondents have also invited our attention to the
judgment of Licil Antony vs. State of Kerala and Another,
reported as (2014) 11 SCC 326, in addressing the issue of
delay in issuing the order of detention.
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86. In Licil Antony (supra), while dealing with the question of
delay, the Hon'ble Supreme Court in paragraph 18 thereof
observed that "the question whether the prejudicial activity of
a person necessitating to pass an order of detention is
proximate to the time when the order is made or the live-link
between the prejudicial activity and the purpose of detention is
snapped depends upon the facts and circumstances of each
case".
87. The facts and circumstances which demonstrate the snapping
of the live-link between the alleged prejudicial activity and the
purpose of detention have been copiously detailed in the
present writ petition and the written submissions filed on
behalf of the petitioners.
88. The present case is, therefore, entirely distinguishable on facts
from the case of Licil Antony (supra), since in that case there
was a delay of one month between the arrest of the detenu and
the issuance of proposal of detention by the Sponsoring
Authority. The detenu in Licil Antony (supra) was arrested on
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17.11.2012 and the proposal for detention dated 17.12.2012
was received by the Detaining Authority on 21.12.2012.
89. In the present case, however, the petitioners were admittedly
arrested on 24.04.2019, whereas the proposal for detention by
the Sponsoring Authority was made, belatedly, only in January,
2020. Thus, evidently in the present case, there is a delay of
over 08 months between the arrest of the petitioners and the
proposal for detention by the Sponsoring Authority to the
Detaining Authority; which is in complete contrast to the delay
of just one month in the relied upon decision in Licil Antony
(supra).
90. Further, in Licil Antony (supra), the Detaining Authority after
scrutinizing and evaluating the proposal dated 25.01.2013,
placed the same before the Screening Committee and
forwarded the same on 01.02.2013. The Detaining Authority
took the decision to detain the detenu on 15.04.2013. The
detention order was expeditiously passed on 06.05.2013, after
the draft grounds in English were approved on 19.04.2013 post
translation to Tamil, which took time till 03.05.2013. It is in
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these circumstances that the delay in passing the detention
order was considered satisfactory in the facts and
circumstances of Licil Antony (supra). However, in the present
case, as elaborated hereinabove, there has been no satisfactory
explanation forthcoming as to why there was a delay of more
than 08 months on the part of the Sponsoring Authority in
issuing a proposal for the detention of the petitioners.
91. Even in Licil Antony (supra), the Hon'ble Supreme Court in
paragraph 09 thereof observed that the delay in issuing order
of detention, if not satisfactorily explained, itself is a ground to
quash the order of detention. It is in these circumstances that
we are of the view that the decision relied upon by the
respondents does not support their contentions in the present
case.
92. Mr. Amit Mahajan, learned Central Government Standing
Counsel appearing on behalf of the respondent, has
vehemently argued that the question of delay in relation to the
passing of the detention order cannot be re-agitated in these
proceedings, since that aspect had already been dealt with by
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this Court in Mohd. Nashruddin vs. Union of India & Ors.,
W.P.(CRL.) No. 786/2020 decided on 11.09.2020, wherein it
was held that there was no delay in passing of the impugned
detention orders.
93. In this behalf, it is observed that this Court was clearly dis-
inclined to accept the argument of delay urged on behalf of the
detenus herein at the pre-execution stage, which finding is
reflected in paragraphs 68 and 69 of the said judgment dated
11.09.2020. However, as is evident from the dictum of the
Hon'ble Supreme Court in Muneesh Suneja (supra), there can
be no quarrel with the legal position, that even though the
detention order has not been quashed at the pre-detention
stage, it may be quashed at the post-detention stage. In this
behalf, it would be pertinent to observe that, at the time of
mounting a challenge to the impugned detention orders at the
pre-detention stage, the petitioners admittedly did not have
access to the detention orders, the grounds thereof, as well as
the Relied Upon Documents, since the same were served upon
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them only on 01.10.2020, consequent upon their arrest and
detention.
94. It is at that stage that the petitioners became aware for the first
time about the absence of the details and particulars of
overseas evidence from Dubai in November 2019, since the
same was neither mentioned in the impugned detention orders
nor formed part of the Relied Upon Documents. It is in this
view of the matter, as well as the dictum of the Hon'ble
Supreme Court in Muneesh Suneja (supra), that we find
ourselves unable to agree with the respondent's submission
that as the aspect of delay was dealt with by this Court in
Mohd. Nashruddin (supra) in the earlier round at the pre-
detention stage, we ought not to examine that issue at the post-
detention stage. The parameters, in our considered view, in
relation to the consideration of the subject detention orders at
the post-detention stage are entirely different.
95. The next issue that requires adjudication is whether the
impugned detention orders are vitiated on account of non-
application of mind. In this behalf, we are constrained to
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observe that in the grounds of detention, strong reliance has
been placed upon the statements of the detenus and co-
detenus, recorded under the provisions of Customs Act, 1962.
A plain reading of the said grounds of detention clearly reflects
the extensive reliance placed upon the said statements by the
Detaining Authority, for arriving at its purported subjective
satisfaction.
96. It is immediately evident, however, that the Detaining
Authority did not consider the circumstance that the detenus
and the other questioned individuals, whose statements formed
the basis of the grounds of detention, had long since retracted
those statements. In this behalf, the impugned orders of
detention makes only a passing reference to the circumstance
that the DRI had issued rebuttals to the said retractions on
16.01.2020, barely five days before passing the subject orders.
This circumstance highlights the considerable gap of time
between the retraction of their statements by the detenus and
co-detenus, and rebuttal thereof by the DRI. This belated
rebuttal on the part of the official respondents was relevant and
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merited consideration by the Detaining Authority, particularly
when extensive reliance was evidently placed upon those
statements. The Detaining Authority would also have been
well-advised to consider the aspect of admissibility of the
statements, which stood retracted; and were only rebutted by
the Sponsoring Authority, a few days before the passing of the
impugned orders of detention. Further, we find from the
record of the Detaining Authority that strong reliance has been
placed upon the statement of not just the detenus but also the
statements allegedly recorded of Vikram Bhasin and Mahesh
Jain, statedly the co-accused. In this behalf, the record reflects
that Vikram Bhasin and Mahesh Jain retracted their statements
as far back as on 03.06.2019, which retractions have evidently
not being placed before the Detaining Authority by the
Sponsoring Authority. In our view, once the Detaining
Authority has relied upon the inculpatory statements of the co-
accused their retractions assumed great relevance in the factual
backdrop of the present case. Consequently, the admissibility
of the said statements becomes questionable once there is a
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retraction, which issue merited consideration, not accorded to
it by the Detaining Authority.
97. In this behalf, it is also trite to state that the Sponsoring
Authority was under a legal obligation to have placed the said
retractions before the Detaining Authority for the latter's
subjective satisfaction.
98. In this behalf, it would be beneficial first to consider the
observations of the Hon'ble Supreme Court in A Sowkath Ali
vs. Union of India & Others, reported as (2000) 7 SCC 148
and particularly in paragraph 20 thereof. The said paragraph is
extracted hereinbelow for the sake of facility:-
"20. There can be no doubt, it was not necessary,
while considering the case of the petitioner
detenu, to place all or any of the documents
which are relevant and are relied on in the
proceedings of a co-accused, but where the
sponsoring authority opts out of its own
volition to place any document of the other co-
detenu, not merely as a narration of fact but
reiterating in details the confession made by
him, then it cannot be said it would not
prejudice the case of the detenu. If this has
been done it was incumbent for the sponsoring
authority to have placed their retraction also.
As held in Rajappa Neelakantan case [(2000) 7
SCC 144 : (2000) 2 Scale 642] the placement of
document of other co-accused may prejudice
the case of the petitioner. In the first pace the
same should not have been placed, but if
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placed, the confessional statement and the
retraction, both constituting a composite
relevant fact both should have been placed. If
any one of the two documents alone is placed,
without the other, it would affect the subjective
satisfaction of the detaining authority. What
was the necessity of reproducing the details of
the confessional statement of another co-
accused in the present case? If the sponsoring
authority would not have placed this then
possibly no legal grievance could have been
made by the detenu. But once the sponsoring
authority having chosen to place the
confessional statement, then it was incumbent
on it to place the retraction also made by them.
In our considered opinion, its non-placement
affects the subjective satisfaction of the
detaining authority. This Court has time and
again laid down that the sponsoring authority
should place all the relevant documents before
the detaining authority. It should not withhold
any such document based on its own opinion.
All documents, which are relevant, which have
bearing on the issue, which are likely to affect
the mind of the detaining authority should be
placed before him. Of course a document which
has no link with the issue cannot be construed as
relevant."
99. In a similar vein are the observations of the Hon'ble Supreme
Court in P. Sarvanan vs. State of T.N. and Others, reported as
(2001) 10 SCC 212 and in particular paragraphs 7, 8 and 9
thereof. The said paragraphs as extracted hereinbelow:-
"7. When we went through the grounds of detention
enumerated by the detaining authority we noticed
that there is no escape from the conclusion that the
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subjective satisfaction arrived at by the detaining
authority was the cumulative result of all the
grounds mentioned therein. It is difficult for us to
say that the detaining authority would have come to
the subjective satisfaction solely on the strength of
the confession attributed to the petitioner dated 7-
11-1999, particularly because it was retracted by
him. It is possible to presume that the confession
made by the co-accused Sowkath Ali would also
have contributed to the final opinion that the
confession made by the petitioner on 7-11-1999 can
safely be relied on. What would have been the
position if the detaining authority was apprised of
the fact that Sowkath Ali had retracted his
confession, is not for us to make a retrospective
judgment at this distance of time.
8. The second contention that non-placement of the
retraction made by Sowkath Ali would not have
affected the conclusion as the petitioner's confession
stood unsullied, cannot be accepted by us. The
detaining authority had relied on different materials
and it was a cumulative effect from those materials
which led him to his subjective satisfaction. What is
enumerated in Section 5-A of the COFEPOSA Act
cannot, therefore, be applied on the fact situation in
this case.
9. In this context, it is to be mentioned that the
detention order passed against Sowkath Ali was
quashed by this Court when he challenged that
detention order under Article 32 of the Constitution
(vide A. Sowkath Ali v. Union of India [(2000) 7 SCC
148 : 2000 SCC (Cri) 1304 : (2000) 5 Scale 372] ).
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100. Further, in Ashadevi vs. K. Shivraj, reported (1979) 1 SCC 222
the Hon'ble Supreme Court held as under:-
"6. It is well-settled that the subjective satisfaction
requisite on the part of the detaining authority, the
formation of which is a condition precedent to the
passing of the detention order will get vitiated if
material or vital facts which would have a bearing
on the issue and would influence the mind of the
detaining authority one way or the other are
ignored or not considered by the detaining
authority before issuing the detention order. In Sk.
Nizamuddin v. State of West Bengal [(1975) 3 SCC
395 : 1975 SCC (Cri) 21 : AIR 1974 SC 2353] the
order of detention was made on September 10,
1973 under Section 3(2)(a) of MISA based on the
subjective satisfaction of the District Magistrate
that it was necessary to detain the petitioner with a
view to preventing him from acting in a manner
prejudicial to the maintenance of supplies and
services essential to the community and this
subjective satisfaction, according to the grounds of
detention furnished to the petitioner, was founded
on a solitary incident of theft of aluminium wire
alleged to have been committed by the petitioner
on April 14, 1973. In respect of this incident of
theft a criminal case was filed inter alia against the
petitioner in the Court of the Sub-Divisional
Magistrate, Asansol, but the criminal case was
ultimately dropped as witnesses were not willing to
come forward to give evidence for fear of danger to
their life and the petitioner was discharged. It
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appeared clear on record that the history-sheet of
the petitioner which was before the District
Magistrate when he made the order of detention did
not make any reference to the criminal case
launched against the petitioner, much less to the
fact that the prosecution had been dropped or the
date when the petitioner was discharged from that
case. In connection with this aspect this Court
observed as follows:
"We should have thought that the fact that a
criminal case is pending against the person who is
sought to be proceeded against by way of
preventive detention is a very material
circumstance which ought to be placed before the
District Magistrate. That circumstance might quite
possibly have an impact on his decision whether or
not to make an order of detention. It is not
altogether unlikely that the District Magistrate may
in a given case take the view that since a criminal
case is pending against the person sought to be
detained, no order of detention should be made for
the present, but the criminal case should be allowed
to run its full course and only if it fails to result in
conviction, then preventive detention should be
resorted to. It would be most unfair to the person
sought to be detained not to disclose the pendency
of a criminal case against him to the District
Magistrate."
It is true that the detention order in that case was
ultimately set aside on other grounds but the
observations are quite significant. These
observations were approved by this Court in Suresh
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Mahato v. District Magistrate, Burdwan [(1975) 3
SCC 554 : 1975 SCC (Cri) 120 : AIR 1975 SC
728] . The principle that could be clearly deduced
from the above observations is that if material or
vital facts which would influence the mind of the
detaining authority one way or the other on the
question whether or not to make the detention
order, are not placed before or are not considered
by the detaining authority it would vitiate its
subjective satisfaction rendering the detention
order illegal. After all the detaining authority must
exercise due care and caution and act fairly and
justly in exercising the power of detention and if
taking into account matters extraneous to the scope
and purpose of the statute vitiates the subjective
satisfaction and renders the detention order invalid
then failure to take into consideration the most
material or vital facts likely to influence the mind
of the authority one way or the other would equally
vitiate the subjective satisfaction and invalidate the
detention order.
7. In the instant case admittedly three facts were not
communicated to or placed before the detaining
authority before it passed the impugned order
against the detenu, namely, (i) that during
interrogation of the detenu, in spite of request,
neither the presence nor the consultation of the
Advocate was permitted; (ii) that in spite of
intimation to the Advocate in that behalf the detenu
was not produced before the Magistrate on
December 14, 1977 and (iii) that the confessional
statements were squarely retracted by the detenu on
December 22, 1977 at the first available
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opportunity while he was in judicial custody; the
first two had a bearing on the question whether the
confessional statements had been extorted under
duress from detenu or not, while the third
obviously was in relation to the confessional
statements which formed the main foundation of
the impugned order and as such were vital facts
having a bearing on the main issue before the
detaining authority. As regards the first this Court
in Nandini Satpathy [Nandini Satpathy v. P. L.
Dani, (1978) 2 SCC 424 : 1978 SCC (Cri)
236] case has observed in para 63 of the judgment
thus:"
101. In Union of India vs. Ranu Bhandari, reported as (2008) 17
SCC 348, the Hon'ble Supreme Court has observed so in
Paragraphs 33, 34 and 35, which are reproduced hereunder:-
"33. In the instant case, as some of the vital documents
which have a direct bearing on the detention order,
had not been placed before the detaining authority,
there was sufficient ground for the detenu to
question such omission. We are also of the view
that on account of the non-supply of the documents
mentioned hereinbefore, the detenu was prevented
from making an effective representation against his
detention.
34. In the said circumstances, we do not see any reason
to interfere with the judgment and order of the
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High Court and the appeal is accordingly
dismissed.
35. In parting, we may reiterate what we have
indicated hereinbefore, that since the personal
liberty and individual freedom of a citizen is
curtailed by an order of preventive detention, the
detaining authorities must apply their minds
carefully and exercise great caution in passing such
an order upon being fully satisfied from materials
which are both for and against the detenu that such
an order is required to be passed in the interest of
the State and for the public good."
102. The reliance placed by the respondent on the decision of the
Hon'ble Supreme Court in Madan Lal Anand vs. UOI,
reported as (1990) 1 SCC 81, to the effect that it has been held
therein that only copies of documents, on which the impugned
detention orders are primarily based should be supplied to the
detenus and not any and every documents, we observe that it
was also clearly held therein in paragraph 24 thereof as under:-
"We must not, however, be understood to say that the
detaining authority will not consider any other
document."
103. In view of the above extracted decisions, the legal position that
emerges on this aspect is that, if the documents are relevant
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and have a direct bearing on the case, they must be placed
before the Detaining Authority for its 'subjective satisfaction'.
104. The reliance placed by the respondent upon the decision of
Kamarunnisa vs. Union of India, reported as (1991) 1 SCC
128, does not come to their aid, since in the present case we
agree with the submissions made on behalf of the petitioners,
that the present is a case of non-placement of vital facts and
documents before the Detaining Authority and that the
'subjective satisfaction' is vitiated since the latter was not in
possession of vital material. The ratio in Kamarunnisa
(supra) is, therefore, distinguishable on the facts thereof. We,
therefore, answer the third issue by observing that the
Detaining Authority fell into error in not considering vital
material, thereby vitiating its subjective satisfaction, being hit
by the vice of non-application of mind.
105. As far as the fourth issue is concerned, we observe that the
Detaining Authority whilst arriving at its 'subjective
satisfaction' failed to properly examine whether the detenus
exhibited propensity to continue indulging in any prejudicial
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activities, for the reason that there was no consideration of the
circumstance that IMNPL had been placed under the Denied
Entity List, thereby clearly indicating and establishing that it
could no longer import gold under the Advance Authorization
Scheme; and completely eliminating the possibility of it
misusing the said scheme. The consideration of the said aspect
is conspicuous by its absence in the impugned detention
orders.
106. Also the factum of suspension of Vikram Bhasin, the co-
accused, who was the Jewellery Appraiser, was neither placed
nor considered by the Detaining Authority. It this behalf, it
would be pertinent to observe that it was the case of the
Sponsoring Authority itself that ''The role of Vikram Bhasin
was so crucial since without his collusion, the smuggling of
Gold could not have been possible". It was, therefore,
incumbent upon the DRI to place the suspension order qua
Vikram Bhasin for due consideration of the Detaining
Authority.
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107. Further, insofar as the detenu Amit Pal Singh is concerned, the
DRI was required to bring the circumstance of the seizure of
his passport at the time of his arrest and non-release thereof, to
the notice of the Detaining Authority, since the same was a
relevant factor for the purpose of determining whether the said
detenu would have the propensity to indulge any further in the
alleged prejudicial activities.
108. Lastly, the Detaining Authority did not consider the conduct of
the detenus post their enlargement on bail, whilst rendering the
impugned orders of detention.
109. Additionally, the order of CESTAT dated 13.11.2019 directing
the provisional release of the goods, was also a relevant factor,
that was not accorded any consideration by the Detaining
Authority in the present case.
110. In Husainbi Abdullah Ghalamsalam vs. State of
Maharashtra, reported as 2013 SCC OnLine Bom 160, it was
held by a Division Bench of Bombay High Court in
paragraphs 6 and 7 thereof, as follows:-
"6. Learned Counsel for the Petitioner relied upon the
ruling in Smt. Nafisa Syed Ali v. The state of
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Maharashtra reported in 2013 ALL MR (Cri) 78. A
Division bench of this Court after reference to
observations and ratio in GIMK PIOTR 2010 ALLMR
(Cri) 308 (SC) had allowed the Writ Petition on the
ground that when a passport of the detenu was
retained with the Customs department, the
likelihood of the detenu indulging in the
smuggling activities was foreclosed. Impounding
the passport of the detenu was enough to curb the
potentiality of the smuggling, and therefore there
was no justification to pass order of preventive
detention when there was no chance of the detenu
travelling to foreign country without passport. In
the present case, admittedly the passport of the
detenu was retained by the Authorities and was
not returned.
7. In the present case, likelihood of the detenu
travelling to foreign country illegally without the
passport was remote. In view of the law laid down in
the aforesaid decisions, the detention order is based
only on clause (i) of Section 3(1) of the COFEPOSA
Act, the order of detention deserves to be set aside."
111. In Moulana Shamshunnisa vs. Additional Chief Secretary
and Others, reported as (2015) 15 SCC 72 the Hon'ble
Supreme Court in paragraphs 7, 8 and 9 observed as under:-
"7. In this background, the learned counsel has submitted
that the observations of the detaining authority and
the High Court, therefore, that in case the detenu
was released from jail, he could continue with his
smuggling activities within India, notwithstanding
that he could not travel abroad as his passport had
been seized, was not acceptable as there was no
material to justify this conclusion. In this
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connection, the learned counsel has placed reliance
on Rajesh Gulati v. Govt. (NCT of Delhi) [(2002) 7
SCC 129 : 2002 SCC (Cri) 1627] and Gimik
Piotr v. State of T.N. [(2010) 1 SCC 609 : (2010) 1
SCC (Cri) 864].
8. In Rajesh Gulati case [(2002) 7 SCC 129 : 2002 SCC
(Cri) 1627] the question that came to be canvassed
on behalf of the detenu was that as his passport
continued to be in the possession of the Customs
Authorities, there was no question of the appellant
travelling abroad or indulging in any smuggling
activity. This plea was accepted by this Court by
observing that it was not the case of the detaining
authority at any stage that the detenu would be
able to continue with his smuggling activities
within India, though he could not go abroad his
passport having been seized. It was observed thus:
(SCC p. 134, para 15)
"15. ... The conclusion that despite the
absence of his passport the appellant
could or would be able to continue his
activities is based on no material but was
a piece of pure speculation on the part of
the detaining authority. These findings
are sufficient to invalidate the impugned
detention order and it is not necessary to
consider the other issues raised by the
appellant."
9. This opinion has been further fortified by this Court
in Gimik Piotr case[(2010) 1 SCC 609 : (2010) 1 SCC
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(Cri) 864] . In SCC para 32, it has been held as under:
(SCC p. 619)
"32. In the present case, the detention
order was passed under Section 3(1)(i)
of Cofeposa. The Customs Department
has retained the passport of detenu. The
likelihood of the appellant indulging in
smuggling activities was effectively
foreclosed. As observed by this Court
in Rajesh Gulati case [(2002) 7 SCC 129 :
2002 SCC (Cri) 1627], that the contention
that despite the absence of a passport, the
appellant could or would be able to
continue his activities is based on no
material but was a piece of pure
speculation."
And again in SCC para 35: (Gimik Piotr case [(2010)
1 SCC 609 : (2010) 1 SCC (Cri) 864] , SCC p. 619)
"35. In our considered view, the
submission of the learned counsel for the
appellant requires to be accepted. In the
instant case as the facts reveal that there
was no pressing need to curtail the liberty
of a person by passing a preventive
detention order. Foreign currency cannot
be smuggled as the person cannot move
out of the country on account of his
passport being impounded. Merely
because a person cannot otherwise
survive in the country, is no basis to
conclude that a person will again resort to
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smuggling activities, or abetting such
activities by staying in the country. There
is higher standard of proof required in
these circumstances involving the life and
liberty of a person. The material provided
by the respondents is not enough to justify
the curtailment of the liberty of the
appellant under an order of preventive
detention in the facts and circumstances
of the case."
112. We are, therefore, of the view that the Detaining Authority has
erred in arriving at the finding qua the propensity of the
detenus to involve themselves in further prejudicial activities,
by failing to consider the facts and circumstances, elaborated
hereinabove.
113. On the fifth issue regarding the delay on the part of the Central
Government in deciding the representation filed by the
detenus, it would be relevant to consider the circumstance that
both detenus were detained on 01.10.2020 and filed
representations dated 16.10.2020 and 20.10.2020 respectively,
with the Detaining Authority, as well as with the Central
Government. Although the Detaining Authority rejected their
representations on 03.11.2020, no decision, however, was
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taken by the Central Government on the detenus'
representations. Instead the Central Government made a
reference dated 03.11.2020 to the Central Advisory Board,
which gave its opinion qua the sufficiency of the grounds with
regard to the detenus detention. The subject representations
were finally rejected by the Central Government only on
23.12.2020, three days after confirmation by it of the orders of
detention by the Central Advisory Board.
114. A bare perusal of the above clearly reflects, that insofar as the
case of detenus Amit Pal Singh and Gopal Gupta are
concerned, there was massive delay of 69 days and 65 days
respectively by the Central Government in dealing with their
representations.
115. In Ankit Ashok Jalan vs. Union of India and Others,
reported as (2020) 16 SCC 127, the Hon'ble Supreme Court
observed, particularly in paragraph 17 thereof, as under:-
"17. In terms of these principles, the matter of
consideration of representation in the context of
reference to the Advisory Board, can be put in the
following four categories:
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17.1. If the representation is received well before
the reference is made to the Advisory
Board and can be considered by the
appropriate Government, the
representation must be considered with
expedition. Thereafter the representation
along with the decision taken on the
representation shall be forwarded to and
must form part of the documents to be
placed before the Advisory Board.
17.2. If the representation is received just before
the reference is made to the Advisory
Board and there is not sufficient time to
decide the representation, in terms of law
laid down in Jayanarayan
Sukul [Jayanarayan Sukul v. State of W.B.,
(1970) 1 SCC 219 : 1970 SCC (Cri) 92]
and Haradhan Saha [Haradhan Saha v. State
of W.B., (1975) 3 SCC 198 : 1974 SCC (Cri)
816] the representation must be decided
first and thereafter the representation and
the decision must be sent to the Advisory
Board. This is premised on the principle that
the consideration by the appropriate
Government is completely independent and
also that there ought not to be any delay in
consideration of the representation.
17.3. If the representation is received after the
reference is made but before the matter is
decided by the Advisory Board, according to
the principles laid down in Haradhan
Saha [Haradhan Saha v. State of W.B., (1975)
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3 SCC 198 : 1974 SCC (Cri) 816] , the
representation must be decided. The decision
as well as the representation must thereafter
be immediately sent to the Advisory Board.
17.4. If the representation is received after the
decision of the Advisory Board, the decisions
are clear that in such cases there is no
requirement to send the representation to the
Advisory Board. The representation in such
cases must be considered with expedition."
116. It is, therefore, well settled that the right of the detenus to
make a representation and have it considered by the
appropriate Government, with expedition, is a constitutional
right under Article 22 (5) of the Constitution of India and any
unreasonable and unexplained delay in considering the
representation is fatal to the continued detention of the detenu.
117. In this view of the matter; and the circumstances that this
proposition is too well settled in a long line of decisions, it is
not considered necessary for us to examine the other
authorities relied upon by the respondents on this aspect.
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118. We, therefore, hold that there has been inordinate and
unexplained delay on the part of the Central Government in
deciding the statutory representations filed by the detenus.
119. The last issue that arises for determination before us is
whether the subject detention order stands vitiated for the
reason that the grounds stated therein have been lifted from the
grounds taken in an entirely different case.
120. The petitioners herein have produced certified copies of the
detention orders dated 17.05.2019 passed in the case of Union
of India & Anr. vs. Dimple Happy Dhakad, reported as
(2019) 20 SCC 609 (filed by the detenu's wife) from the
records available in the Supreme Court of India. A purposive
comparative consideration of the grounds of detention dated
17.05.2019 in Dimple Happy Dhakad (supra), also passed by
Sh. R.P. Singh, the Detaining Authority in these proceedings;
and the impugned detention orders, gives substance to the
inference is that barring a few differences in the names and
references etc---mutatis mutandis---the grounds are
unerringly identical. The said comparison ground-for-ground
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leads but to one inescapable conclusion, that the entire
exercise of passing the detention orders is mechanical, as the
grounds have been lifted from the grounds of an altogether
distinct case. Such a blatant copy-paste by the Detaining
Authority demonstrates a clear non-application of mind.
121. We, therefore, hold that the impugned orders of detention are
liable to be vitiated on this ground as well.
122. In view of the foregoing discussion, and having accorded our
thoughtful consideration to the material on record, the issues
cited hereinabove are decided in favour of the detenus and
against the respondents.
123. Accordingly, the writ petitions succeed. In the result, the
detention orders bearing No. PD-12001/01/2020-COFEPOSA
and PD-12001/02/2020-COFEPOSA respectively, both dated
21.01.2020 passed against the detenus (Gopal Gupta, the
petitioner in W.P.(CRL.) No.1829/2020) and (Amit Pal Singh,
the petitioner in W.P.(CRL.) No.1830/2020) are set-aside and
quashed. The detenus are directed to be set at liberty forthwith
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unless their custody is required in connection with any other
case.
124. The writ petitions are disposed of in the above terms.
125. A copy of this judgment be provided to learned counsel
appearing on behalf of the parties electronically and be also
uploaded on the website of this Court forthwith.
SIDDHARTH MRIDUL
(JUDGE)
ANUP JAIRAM BHAMBHANI
(JUDGE)
AUGUST 06, 2021
dn/di
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