Delhi High Court
Mohd.Nashruddin vs Union Of India & Ors. on 13 August, 2021
#J-1
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved On : 04.06.2021
Judgment Pronounced On : 13.08.2021
W.P.(CRL) 1924/2020
MOHD. NASHRUDDIN ..... Petitioner
versus
UNION OF INDIA & ORS. ..... Respondents
Advocates who appeared in this case:
For the Petitioner: Mr. Sourabh Kirpal, Senior Advocate with Ms. Jyoti Taneja
and Mr. Himanshu Lohiya, Advocates.
For the Respondents: Mr. Anurag Ahluwalia, CGSC with Mr. Abhigyan Siddhant
and Mr. Nitnem Singh Ghuman, Advocates for R-1 to R-3.
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
JUDGMENT
SIDDHARTH MRIDUL, J (via Video Conferencing)
1. The present petition under Article 226 of the Constitution of
India, essentially in the nature of writ of habeas corpus, has
been instituted on behalf of Mohammed Nashruddin Khan
(hereinafter referred to as the 'detenu'), praying for quashing
of detention order bearing No. PD-12001/03/2020-
Signature Not Verified
Digitally signed
by:DURGESH NANDAN
Signing Date:13.08.2021
19:34:43
COFEPOSA dated 21.01.2020 under Section 3(1) of The
Conservation of Foreign Exchange And Prevention of
Smuggling Activities Act, 1974 (hereinafter referred to as
'COFEPOSA'), and for a further direction that he be set at
liberty forthwith.
FACTS OF THE CASE:-
2. The relevant facts qua the detenu as are necessary for the
adjudication of the subject writ petition are briefly
encapsulated as follows:
i) The detenu has been a non-resident Indian citizen based
in United Arab Emirates (UAE) and has been engaged
in trading in gold/gold jewellery in/from UAE in the
name and style of M/s. M.N. Khan Jewellers (FZE).
ii) One Amit Pal Singh (co-detenu), who is an employee of
M/s. Its My Name Private Limited (hereinafter referred
to as 'IMNPL') was entrusted with the work of
importing and exporting gold jewellery through hand-
carry (personal carriage) to UAE; for the purpose of
taking part in an exhibition organized by M/s. M.N.
Khan Jewellers (FZE), as per the permission by the Gem
Signature Not Verified
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by:DURGESH NANDAN
Signing Date:13.08.2021
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& Jewellery Export Promotion Council (hereinafter
referred to as 'GJEPC').
iii) 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.
iv) 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 US Dollars 150
million for the country.
v) IMNPL had also obtained Advance Authorization
License from the office of DGFT, New Delhi, inter alia
permitting import of 1000 kgs of gold bars.
vi) IMNPL has against the said Advance Authorization
License imported 50 kgs of gold bars and completed
export obligation of approximately 19 kgs of gold bars
Signature Not Verified
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by:DURGESH NANDAN
Signing Date:13.08.2021
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vídé Export Invoice No.ITS/EXP/04 dated 20.04.2019;
with balance export obligation of approximately 31 kgs.
vii) 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.
viii) IMNPL also purchased gold from 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 &
Signature Not Verified
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by:DURGESH NANDAN
Signing Date:13.08.2021
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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, 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 detenu's
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) In pursuance to the said invitation, received from M/s.
M.N. Khan Jewellers (FZE), as above mentioned, Amit
Pal Singh, co-detenu, was entrusted with hand-carrying
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by:DURGESH NANDAN
Signing Date:13.08.2021
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(personal carriage) of the gold jewellery to UAE for the
purpose of the said exhibition, in accordance with the
permission granted and in compliance with the
provisions applicable.
xiii) Export of the gold jewellery was done by IMNPL after
filing the requisite shipping bills along with necessary
documents.
xiv) 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.
xv) The gold jewellery, which remained unsold at the time
of exhibition was brought back by the co-detenu Amit
Pal Singh, from UAE. The co-detenu Amit Pal Singh,
Signature Not Verified
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by:DURGESH NANDAN
Signing Date:13.08.2021
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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.
xvi) Amit Pal Singh, the co-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 him 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 well as making requisite declaration, as
per the Standard Operating Procedures.
xvii) 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,
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by:DURGESH NANDAN
Signing Date:13.08.2021
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the co-detenu to take the same by issuing necessary
Customs Gate Pass in this behalf.
xviii) However, when Amit Pal Singh the co-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.
xix) The detenu also arrived in India by the same flight as the
co-detenu, albeit separately. The detenu was thoroughly
searched, but nothing objectionable was found in his
possession. The detenu was however, also detained by
the officers of DRI at IGI Airport, New Delhi, on the
allegation of involvement in illicit import and export of
gold jewellery along with two co-detenus Amit Pal
Singh and Gopal Gupta. The latter is statedly working
as Chartered Accountant with IMNPL. During his
detention by the DRI on 24/25.04.2019, he was kept at
DRI Headquarters, New Delhi.
Signature Not Verified
Digitally signed
by:DURGESH NANDAN
Signing Date:13.08.2021
19:34:43
xx) According to the detenu, the statements of the detenu
and co-detenus were extracted over the night of
24.04.2019, 25.04.2019 and 26.04.2019, until he was
produced before the learned Duty Magistrate at 11:00
PM at the latter's residence, by the DRI by coercing,
forcing, giving false promises and threatening the
detenu with arrest and false implication.
xxi) All the three persons were shown to have been arrested
on 26.4.2019, on which date they were produced before
the learned Duty Magistrate New Delhi, in the late hours
at around 23.00 hrs.
xxii) It is submitted that the allegations by the DRI are
completely false and incorrect and without any basis
whatsoever and in fact the DRI has tried to give a wrong
colour to otherwise genuine transactions.
xxiii) The said statements under Section 108 of the Customs
Act, 1962 (hereinafter referred to as the 'Customs Act')
procured from all the aforementioned three persons
were immediately retracted verbally before the learned
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by:DURGESH NANDAN
Signing Date:13.08.2021
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Duty Magistrate and thereafter before the Court of
learned Chief Metropolitan Magistrate, Patiala House
Courts, New Delhi on 27.04.2019 in writing. Detenu
also filed a detailed retraction on 26.05.2019 from Tihar
Jail through Superintendent of Jail No. 7, prior to his
release on bail. Retractions were filed by the detenu and
also Amit Pal Singh and Gopal Gupta (co-detenus)
before the learned Chief Metropolitan Magistrate,
Patiala House Courts, New Delhi on 27.04.2019 while
they were lodged in Tihar Jail.
xxiv) At this juncture it is averred by the detenu that vídé
additional submissions filed by DRI, opposing the bail
application of the detenu, it was reiterated that 'it is not
a case of evasion of customs duty'. Consequently, the
detenu and co-detenus were granted bail by the learned
Chief Metropolitan Magistrate, Patiala House Court,
New Delhi vídé common bail order dated 3.6.2019
wherein it was pertinently observed that "it is not
explained that as to how the duty could be saved by
replacing the larger quantity of bills of entries of
Signature Not Verified
Digitally signed
by:DURGESH NANDAN
Signing Date:13.08.2021
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jewellery in India by bill of entry of smaller quantity"
and that "the statement of the accused persons recorded
by DRI officials u/s 108 Customs Act have already been
retracted and it is alleged by the accused persons
therein that their statements were taken under threat
and pressure. The accused persons have been in JC
since 26.04.2019 and their custodial interrogation is no
more required".
xxv) Our attention is invited by the detenu to the
circumstance that the DRI arrested Jewellery Appraiser
Vikram Bhasin and on several dates his statements were
recorded which were relied on as well. Since the
statements recorded were not voluntary in nature and
were statedly recorded under duress, threat and
coercion; the Jewellery Appraiser, Vikram Bhasin duly
retracted his statement through an application directly
addressed to Learned Chief Metropolitan Magistrate on
03.06.2019. The DRI has, however, sent a letter dated
17.01.2020, thereby rebutting the retraction application
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by:DURGESH NANDAN
Signing Date:13.08.2021
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of the Vikam Bhasin. Further a reply to said rebuttal has
been sent by Vikram Bhasin to DRI on 02.03.2020
xxvi) It was further submitted that DRI has been approaching
different statutory authorities from time to time in order
to somehow harass the IMNPL/detenu etc., DRI also
sent a UO Note dated 18/21.06.2019 to DG, DGFT and
acting merely upon the said Note, a Show Cause Notice
dated 27.06.2019 has admittedly issued to the company
IMNPL by DGFT, recording as under:-
"01. Whereas DRI Hqrs. has informed that firm
M/s Its My Name Pvt. Ltd. (IEC
No.0514037342) is suspected to be misusing the
Advance Authorization and the Exhibition
Reimport Scheme through circular trading of
gold jewellery exported under the guise of goods
for exhibition purpose from India through hand
carriage....."
xvii) Even prior to the issuance of the Show Cause Notice.,
vídé Order dated 26.06.2019, the DGFT placed the IEC
(Import Export Code) of the Company IMNPL in
Denied Entity List (DEL) - Blacklist.
Signature Not Verified
Digitally signed
by:DURGESH NANDAN
Signing Date:13.08.2021
19:34:43
xviii) In relation to the dispute regarding the local address of
the present detenu, a verification report was filed in
compliance to order dated 20.06.2019 passed by learned
Chief Metropolitan Magistrate by the DRI
Headquarters, New Delhi. The report expressly states
that "..the department has no objection in serving the
summons/other correspondence pertaining to Mohd.
Nashruddin till pendency of investigation through Mr.
Himanhu Lohiya as requested in application and
affidavit dated 20.06.2019 filed by Mohd. Nashruddin."
xix) In relation to the seizure of the gold jewellery from the
co-detenu Amit Pal Singh at the IGI Airport, New Delhi
on 24.04.2019 and further seizure of gold jewellery from
the IMNPL business premises on 24-25.04.2019,
purportedly after completion of the investigation, a
Show Cause Notice dated 26.09.2019 was issued by the
DRI, New Delhi, wherein the detenu was also made a
noticee and penalty was proposed upon the detenu under
the provisions of Customs Act.
Signature Not Verified
Digitally signed
by:DURGESH NANDAN
Signing Date:13.08.2021
19:34:43
xxx) The detenu's passport was released vídé order dated
07.01.2020 by the learned Chief Metropolitan
Magistrate, Patiala House Courts, New Delhi and he was
permitted to travel abroad. The DRI carried the said
order passed by the learned Chief Metropolitan
Magistrate in appeal to the Sessions Court, as well as
this Court, but to no avail.
xxxi) It is also averred on behalf of the detenu that despite the
release of his passport and the permission granted to the
detenu to travel abroad; the detenu has not exercised his
liberty to travel abroad, exhibiting his bona fides and
negating the stand taken by the DRI qua his propensity
to indulge in the alleged act in any manner.
xxxii) It is curious to observe that after almost 09 months of
the detenu's arrest and the filing of retraction statement
before the learned Chief Metropolitan Magistrate, DRI
belatedly sent a letter to him dated 16.01.2020 and
dispatched only on 22.01.2020 by them, stating therein
that his retraction had been dismissed by the
"Competent Authority". It is relevant to note that the
Signature Not Verified
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by:DURGESH NANDAN
Signing Date:13.08.2021
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said communication dated 16.01.2020 was received by
the detenu only on 23.01.2020 i.e. after issuance of the
impugned order of detention.
xxxiii) Insofar as, the detenu is concerned, when he came to
know about the passing of the impugned detention order
dated 21.01.2020, he assailed the same before the
Hon'ble Supreme Court of India vídé W.P. (CRL.)
No.63/2020, which however, was disposed of by the
Hon'ble Supreme Court granting him liberty to institute
the same before this Court. In terms of the aforesaid
liberty, the detenu filed W.P.(CRL.) No.786/2020,
challenging the impugned detention order at the pre-
detention stage. However, the same came to be
dismissed by this Court vídé order dated 11.09.2020.
The detenu carried the said order dated 11.09.2020 in
appeal before the Hon'ble Supreme Court vídé SLP
(CRL.) No.4618/2020, which was however dismissed
by the Hon'ble Supreme Court vídé order dated
30.092020.
Signature Not Verified
Digitally signed
by:DURGESH NANDAN
Signing Date:13.08.2021
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xxxiv) The detenu after exhausting his legal remedies in the
form of the above mentioned writ petitions, then
surrendered before the learned Additional Sessions
Judge, Patiala House Court, New Delhi, by filing a
surrender application dated 11.10.2020, whereupon he
was served with a one-page detention order dated
21.01.2020 in the court premises on 12.10.2020 by
officers of the executing authority, and then taken to
Tihar Jail, New Delhi, in pursuance to the detention
order.
xxxv) The detenu filed a representation dated 27.10.2020
before the Detaining Authority as well as Central
Government on the grounds stated therein and praying
for revocation of the detention order. Simultaneously,
the detenu vídé separate letter dated 27.10.2020 sought
for supply of the relevant documents from the Detaining
Authority. The Joint Secretary, COFEPOSA however
rejected the representation made vídé letter dated
27.10.2020 filed by the detenu praying for supply of the
relevant documents vídé Memorandum dated
Signature Not Verified
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by:DURGESH NANDAN
Signing Date:13.08.2021
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09.11.2020. It is the detenu's case that his representation
was rejected without any valid or proper explanation and
without supplying the documents asked for by him,
thereby preventing him from making an effective
representation against the impugned detention order.
xxxvi) A perusal of the grounds of detention impugned in these
proceedings reveals that the role assigned to the detenu
therein, pursuant to the investigation carried-out, is that
IMNPL, in connivance with the detenu, opened a
dummy company in the name and style of M/s. M.N.
Khan Jewellers (FZE) in UAE in the year 2015 to
manage the business interest of IMNPL and other
related firms of the company at Dubai. The detenu is a
key member of the syndicate and its conduit in UAE and
abetted the company in the execution of conspiracy
relating to misuse of the Advance Authorization
Scheme. In order to fulfil the export obligation under
the said scheme, IMNPL hatched a conspiracy, whereby
gold jewellery was exported to the detenu's company
M/s. M.N. Khan Jewellers (FZE), U.A.E. for exhibition
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by:DURGESH NANDAN
Signing Date:13.08.2021
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purpose through hand-carry, either by co-detenu Amit
Pal Singh or by the detenu himself. The said gold
jewellery was subsequently re-imported into India
fraudulently. On 24.04.2019 M/s. M.N. Khan Jewellers
(FZE) filed declaration before the Federal Customs
Authority, U.A.E. that 51.172 kgs of gold jewellery
were exported to Kathmandu, Nepal through hand-carry
by Mustafa Kamal and 0.745 kgs of gold jewellery was
exported to Delhi through Amit Pal Singh, the co-
detenu.
ARGUMENTS ON BEHALF OF THE PETITIONER:-
3. Mr. Sourabh Kirpal, learned Senior Counsel appearing on
behalf of the petitioner vehemently assails the impugned
order of detention whilst submitting that the Sponsoring
Authority has suppressed and failed to supply vital
documents i.e. (i) Order dated 26.06.2019 passed by DGFT
placing the co-detenu's company "It's My Name Private
Limited" in Denied Entity List; (ii) Retraction statement
dated 03.06.19 of Mr. Vikram Bhasin; (iii) Suspension order
dated 22.05.2020 of Mr. Vikram Bhasin; (iv) Retraction
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statement dated 31.10.19 of Mr. Mahesh Jain; (v) Reply dated
08.05.19 filed by IMNPL before Sponsoring Authority
explaining the transaction; (vi) Order dated 25.09.19 passed
by learned Chief Metropolitan Magistrate, Patiala Hose
Court, New Delhi, rejecting the application seeking
cancellation of Bail filed by DRI; (vii) Panchnamas dated
09.01.2017, 13.01.2017 and 19.01.2017 and other documents
heavily relied upon in Grounds of Detention by Sponsoring
Authority from the previous case of M/s. Bharti Gems Private
Limited, to the Detaining Authority necessary to form
subjective satisfaction by the latter. Also, the material
documents were not supplied to the detenu disabling him
from making an effective, purposeful and meaningful
representation. It is submitted that the Detention Order is
liable to be set-aside as there is an obligation upon the
Sponsoring Authority to place all relevant documents before
the Detaining Authority to form subjective satisfaction. Non-
placement of such relevant and vital documents, has resulted
in non-consideration of the same; thus affecting the decision
making process of the Detaining Authority in recording his
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subjective satisfaction, and consequently vitiating the
Detention Order. It is pertinent to note that the COFEPOSA
does not recognize any authority like the 'Sponsoring
Authority'. It appears that in the present case the officers of
the DRI have been conducting the investigation which they
are not authorized under law to do, as they are not 'proper
officers' for the said purpose under the provisions of Customs
Act.
4. Further, it is submitted that the material documents i.e. (i)
Advance Authorisation License, whose Condition 6 was
alleged by the DRI to have been violated, stipulating that
"The exempt goods imported against the authorization shall
only be utilized in accordance with the provisions of
Paragraph 4.16 of the Foreign Trade Policy 2015-20 and
other provisions and the relevant Customs Notification -
[Custom Notification 18/2015 dated 01.04.2015 (for physical
exports), 21/2015 dated 01.04.2015 (for deemed exports)
22/2015 dated 01.04.2015 (for Advance Authorization for
prohibited goods) and 20/2015 (for Annual Advance
Authorization) as the case may be]"; and (ii) Statements of
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Mr. Amit Pal Singh and Mr. Gopal Gupta, the co-detenus and
the detenu recorded while in judicial custody during the
investigation in the case of M/s Bharti Gems Private Limited,
were neither supplied to the detenu nor were made part of
Relied Upon Documents but have been heavily relied in
establishing Grounds of Detention, thus disabling the detenu
from making an effective purposeful and meaningful
representation.
5. It was further submitted that by learned Senior Counsel
appearing on behalf of petitioner that there has been delay in
deciding Representation by the Central Government as
the petitioner was detained on 12.10.2020; the petitioner filed
representation dated 27.10.2020 with the Detaining
Authority and with the Central Government (DG, CEIB); the
Detaining Authority rejected the representation made by the
petitioner vídé Memorandum dated 09.11.2020; however,
the DG CEIB, did not deal with the representation of the
detenu expeditiously and instead made a Reference dated
10.11.2020 in terms of Section 8(b) of COFEPOSA to the
Central Advisory Board. The Central Advisory Board gave
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by:DURGESH NANDAN
Signing Date:13.08.2021
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its opinion that there existed sufficient grounds for the
detention of the petitioner. Basis the opinion of the Central
Advisory Board, the Central Government on 21.12.2020, in
exercise of powers under Section 8(f) of COFEPOSA,
confirmed the Detention Order dated 21.01.2020.
Representation of the petitioner was rejected vídé
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 Representation. This shows
complete non-application of mind by the Central
Government while dealing with the petitioner's
representation.
6. It is further argued, that there has been a complete and utter
non-application of mind by the Detaining Authority, while
passing the impugned detention order, as is further evident
from the fact that the grounds of detention in the case of the
petitioner 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 vídé Detention
Order dated 17.05.2019, also passed by the same officer Mr.
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Signing Date:13.08.2021
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R.P. Singh. On a comparison between the impugned
detention orders and the detention order dated 17.05.2019 in
respect of Happy Arvind Kumar Dhakad, it is clear that the
same are identical, barring a few differences in names and
references etc. The petitioner have filed the Detention Order
dated 17.05.2019 passed in the case of Happy Arvind Kumar
Dhakad along with a comparison of the grounds of detention
in the impugned detention orders dated 21.01.2020. A
comparison makes it clear that the entire exercise of passing
the impugned detention orders is mechanical, as 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.
7. It was further submitted that by learned Senior Counsel
appearing on behalf of petitioner that the proposal for
preventive detention was sent to the Detaining Authority on
02.01.2020 and the meeting of the Central Screening
Committee was held on 13.01.2020 and the
recommendations of the Central Screening Committee were
submitted to the Detaining Authority on 14.01.2020. The
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by:DURGESH NANDAN
Signing Date:13.08.2021
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Grounds of Detention relies on a rebuttal of retraction
application by DRI dated 16.01.2020, which implies that the
said document was placed by the Sponsoring Authority
before the Detaining Authority only after 16.01.2020 (the
said day being a Thursday). It is further a matter of record
that the Detention Order and Grounds of Detention for the
detenu and the co-detenus i.e. Amit Pal Singh and Gopal
Gupta, were passed on 21.01.2020 (the said day being a
Tuesday). Accordingly, three detention orders running into
some 50 pages each i.e., 150 pages plus the Relied Upon
Documents, running into some 6000 pages came to be passed
on the same day, which it is difficult to believe was possible
for an ordinary human to process. It is thus apparent that the
Detaining Authority did not apply its mind on the available
material at one time and instead scrutinised the documents in
a piece meal manner while passing the detention order.
8. It has also been argued on behalf of petitioner that there was
delay in passing of Detention Order dated 21.01.2020,
viewed within the four corners of the settled position of law
that a detention order will be vitiated if on account of delay
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Signing Date:13.08.2021
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in passing the Detention Order, the live-link between the
prejudicial activities of the detenu and the rationale of
clamping a detention order on the detenu is snapped, since
the impugned detention order was 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 evidently reflects that there is inordinate delay of 272
days in passing of the impugned detention orders from the
date of the alleged incident. The live-link between the alleged
prejudicial activities and the impugned detention orders stood
snapped in the intervening 272 days. Moreover, when the
petitioner 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
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 petitioner in the aforesaid writ
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Signing Date:13.08.2021
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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 : -
27.06.2019 Investigation concluded and
culminated into SCN.
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.
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
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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 petitioner did not have the benefit of the
impugned detention orders as the same had not been served
upon the petitioner. Upon being served with the impugned
detention orders the petitioner learnt that any reference to
overseas evidence from Dubai in November, 2019 was
conspicuously absent and no such documents were placed
before the Detaining Authority. Instead, what emerges from
the detention order is that all the material evidence, including
overseas evidence, sought to be used against the petitioner
was already collected by as early as July, 2019.
11. It was further submitted by Senior Counsel for the petitioner
that another aspect which became strikingly noticeable to the
petitioner, which was not known to the petitioner at the pre-
execution stage, is that Mr. R.P. Singh was all long aware of
the case against the petitioner, at least as early as 02.08.2019.
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The aspect of delay, therefore, assumes a different
complexion. There is nothing in Section 3 of COFEPOSA or
in the scheme of the Act which suggests that the specially
empowered officer under Section 3 of COFEPOSA 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.
12. 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 Order, goes to the root of the matter and defeats the
very purpose of appointing a "specially empowered" officer
under Section 3(1) of COFEPOSA, whose satisfaction must
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
order ought to be quashed.
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13. In order to support his exhaustive oral submissions, Mr.
Sourabh Kirpal, learned Senior Counsel appearing on behalf
of the petitioner, has pressed into reliance the following
decisions :-
(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
reported as 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.
(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 296.
(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.
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(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
(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) Gimik Piotr v. State of Tamil Nadu reported as
(2010) 1 SCC 609.
(xix) Rajesh Gulati v. State of NCT of Delhi reported
as (2007) 7 SCC 233.
(xx) Naresh Kumar Jain v. UOI reported as 2011 SCC
OnLine Del 442.
(xxi) T.A. Abdul Rahman v. State of Kerela reported as
(1984) 4 SCC 741.
(xxii) Ahmad Nassar v. State of Tamil Nadu reported as
(1999) 8 SCC 473.
(xxiii) Order dated 12.04.2021 passed by the Hon'ble
High Court of Delhi in W.P.(Crl.) No.821/2021.
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14. Per Contra, Mr. Amit Mahajan, learned Central Government
Standing counsel appearing on behalf respondents would
submit that impugned detention order dated 21.01.2020
passed by the Competent Authority under Section 3(1) of the
COFEPOSA is legal and constitutional and the same has been
passed by the Competent Authority with due application of
mind and after arrival of subjective satisfaction, based on the
sufficient material facts and circumstances of the case.
15. It is further argued that the Detaining Authority is a different
and an independent authority 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 is
made by the CSC, that the proposal goes to the Detaining
Authority. It is, thus, evident that there are three different and
independent authorities entrust with the task of examining the
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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 passes the Detention Order 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 proceedings. Hence, the allegation
of malice in issuing the impugned order is fundamentally
unfounded, wrong, misconceived and untenable.
16. It was further submitted by counsel for the respondent that
the detenu acted as a dummy owner of M/s. M.N. Khan
Jewellers FZE which got registered in the year 2015, working
as a covert employee of IMNPL at the behest of Mr. Rahul
Gupta and was paid monetary consideration by latter/owner
of IMNPL for aiding and assisting circular trading of gold
jewellery. As an employee of IMNPL, Mr. Rahul Gupta used
to pay AED 6000 as monthly salary to detenu, out of which
AED 3000 were credited in detenu's wife's account
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maintained with Bank of India in Mau District (U.P.) and the
remaining amount was paid to the detenu in cash in Dubai.
17. Further, it is submitted that the primary allegation of the
petitioner, 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
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.
18. 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
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acquittal. The pendency of prosecution is no bar to an order
of preventive detention.
19. 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
grounds of detention. Similarly the allegation of ill treatment,
custodial violence, etc, ought not to affect the Detention
Order.
20. 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.
21. It was further submitted by the learned counsel for the
respondent that that only copies of documents on which the
impugned detention order is primarily based are required to
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be supplied to the detenu and not any and every document.
Mere reference of certain instances for the purposes of
completion of narration would not entitle the detenu to be
supplied 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 subjective satisfaction of the
Detaining Authority in passing the detention order.
22. It is also submitted that contention of the petitioner that there
was delay of 9 months in passing of the detention order has
previously been agitated by the petitioner and has been dealt
by this Court in W.P (CRL.) No. 786/2020 titled "Mohd.
Nashruddin Khan v. Union of India & Ors." decided on
11.09.2020 wherein this Court categorically observed that
there was no delay.
23. It has been argued on behalf of respondents that in so far as
the allegation qua the 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
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Sponsoring Authority be held to be the cause of delay in
passing of the detention order.
24. It is also submitted that as far as the averment regarding
retractions filed by the detenu 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 record of the learned Chief Metropolitan
Magistrate. Further, the detenu has time and again relied upon
the observations made in the bail order dated 03.06.2019 of
the learned Chief Metropolitan Magistrate, 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
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submitted that by virtue of COFEPOSA, the respondents
have vested powers in them 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 the
propensity of the person to indulge into prejudicial activities.
25. 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 necessitated the need to prevent the petitioner
from smuggling goods, and detain him.
26. 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
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between the prejudicial activity and the passing of the
detention order, if the same is satisfactorily explained and a
tenable and reasonable explanation is offered, the order of
detention is not vitiated.
27. It was further submitted by the learned counsel for respondent
that the contention of the petitioner that the communication
from FCA, Dubai, in November, 2019 was not made a Relied
Upon Document, is wrong, baseless and misleading. As
regards that contention, relating to guidelines issued by the
department itself, it is respectfully submitted that the relevant
guidelines are internal, executive 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.
28. It has been argued on behalf of respondents that persons
engaged in smuggling activities pose a serious threat to the
economy and thereby 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
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test by merely counting number of months between the
offending acts and order of detention.
29. Lastly, it is also submitted that there was no inordinate delay
in deciding representation of the petitioner by the Central
Government as the representation dated 27.10.2020 was
received from the petitioner through his counsel in the office
of the Director General, CEIB on 27.10.2020 itself and the
requisite information/comments of the Sponsoring Authority
were sought on 28.10.2010 on the said representation. The
requisite information/comments of the Sponsoring Authority
were received on 06.11.2020 and thereafter the matter was
referred to the Advisory Board on 10.11.2020. The answering
respondents on 02.12.2020 sent copies of the representation
of the detenu to the Advisory Board along with 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
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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 representation of the
petitioner by the Central Government.
30. In support of his arguments, Mr. Amit Mahajan, learned
CGSC appearing on behalf of the respondents' 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).
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(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
(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.).
DISCUSSION AND CONCLUSIONS. :-
31. Having heard learned counsel appearing on behalf of the
parties and after due consideration of the rival submissions in
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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 order of detention;
b) Whether the detenu's constitutionally secured right
of making an effective representation has been
jeopardized, by the non-supply of legible and
complete documents, inspite of the detenu's
request in this regard; thereby rendering the order
of detention illegal and bad;
c) Whether the impugned order of detention passed is
bad in law and vitiated on the ground of inordinate
delay;
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d) Whether the impugned detention order is vitiated
on the ground of non-application of mind;
e) 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;
f) Whether there has been delay on the part of the
Central Government in deciding the representation
filed by the detenu; and lastly
g) Whether the detention order stands vitiated owing
to the reason that the grounds stated therein have
been lifted from the grounds taken in an entirely
different case.
32. Insofar as the first issue, viz. whether the Detaining Authority
acted independently and without any bias whilst passing the
impugned order 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
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judgment dated 11.09.2020 passed by this Court at the pre-
detention stage in W.P.(CRL.) No. 786/2020 titled "Mohd.
Nashruddin Khan vs Union of India & Ors".
33. Whilst declining to entertain the aforesaid petition 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."
34. The petitioner has in the course of the present proceeding
placed on record by way of his rejoinder affidavit, 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.
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2. It has been reported that a person was
intercepted by DRI at IGI airport on 24.04.2019
and found in 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."
35. It is pertinent to observe here that the aforesaid letter predates
the detention order dated 21.01.2020 by approximately four
and half months.
36. 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 case
against the petitioner much prior to the passing by him of the
detention order. 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 petitioner's involvement in the case of
misuse of hand-carry and exhibition provisions of the FTP in
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collusion with IMNPL, in respect of the precious Metals and
Jewellery and Advance Authorization Scheme.
37. In this behalf, 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....."
38. The petitioner has refuted the said stand by urging that no
such distinction is discernible from the said letter itself. It is
further submitted by him 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 JS (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
the petitioner that Mr. R.P. Singh himself filed an affidavit
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dated 26.02.2021, in CONT. CAS (C) No. 84/2021, wherein
he rebutted the facts stated in the affidavit dated 10.02.2021.
39. 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.
40. It is, therefore, irrefutable that the Detaining Authority had
prior interaction with the petitioner's 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.
41. We are thus of the considered view, as submitted on behalf
of the petitioner, that Mr. R.P. Singh was actively involved
in the case pertaining to the detenu for a long period, prior to
the passing by him of the impugned detention order; and was
admittedly coordinating the investigation undertaken by the
Competent Agencies, in that regard.
42. The dual role played by Mr. R.P. Singh-first, in the Economic
Intelligence vertical of CEIB (as claimed by the respondents)
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during the active investigation; and second, as J.S.
(COFEPOSA), in passing the impugned Detention Order,
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. As held by us in the recent decision in
W.P.(Crl.) 1829/2020 titled as "Gopal Gupta vs. Union of
India & Ors.' and in W.P.(Crl.) 1830/2020 titled as 'Amit Pal
Singh vs. Joint Secretary COFEPOSA & Ors.', both dated
06.08.2021, 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 order of detention, is
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writ large in the instant case; and as such, the subjective
satisfaction of the Detaining Authority in the present case
stands vitiated.
43. 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.
44. 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 order 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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45. 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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46. Insofar as the second issue, whether the detenu's
constitutionally secured right of making an effective
representation has been jeopardized, by the non-supply of
legible and complete documents, inspite of the detenu's
request in this regard, thereby rendering the order of
detention illegal and bad; is concerned, it is observed that the
request for supply of legible copies of documents inter alia
the passport, identity cards of co-detenu's, WhatsApp chats,
bill of entry, invoice, statement of Mr. Rohit Sharma--who
is alleged to have defaced the gold bars imported illegally--
etc.; was made by the petitioner vídé request letter dated
27.10.2020 to the Detaining Authority, which request was
erroneously and wrongly refused vídé memorandum dated
09.11.2020.
47. It is trite to say that a person detained in pursuance of an order
for preventive detention, has a constitutional right to make an
effective representation against the same. The authorities are
constitutionally charged with the responsibility to ensure that
the grounds of detention, including all relevant documents
that are considered whilst forming the subjective satisfaction,
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are provided to the detenu by the Detaining Authority, so as
to enable the detenu to make an effective representation to
the Advisory Board, as well as to the Detaining Authority.
Therefore, the non-supply of legible copies of all relevant
documents inspite of a request and representation made by
the detenu for the supply of the same, renders the order of
detention illegal and bad; and vitiates the subjective
satisfaction arrived at by the Detaining Authority.
48. In our considered view, therefore, the supply of the following
documents namely, a) Passport, b) Identity Cards of co-
detenu's, c) WhatsApp chats, d) bill of entry, e) invoice, f)
the statement of Mr. Rohit Sharma who is alleged to have
defaced the gold bars imported illegally etc. was critical, in
order to enable the detenu to make a comprehensive, holistic
and effective representation against the impugned detention
order, both before the Advisory Board, as well as before the
Detaining Authority.
49. In the present case, the denial by the official respondent to
supply legible copies of the relevant documents to the detenu,
despite his express request to do so, tantamount to denial of
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his constitutional right, thereby vitiating the detention order,
founded on the said relevant material.
50. In this regard the Hon'ble Supreme Court has, in Dharmistha
Bhagat V State of Karnataka & Ors reported as 1989 Supp
(2) SCC 155 and in particular paragraph 5 thereof, observed
that non-supply of legible copies of vital documents would
render the order of detention illegal and bad. The relevant
portion has been extracted hereinbelow:
5. The learned counsel appearing on behalf of
Respondent 1, Union of India has contended that
even though legible copy of panchnama referred
to in the list of documents mentioned in the
grounds of detention has not been supplied to the
detenu yet the fact that five gold biscuits of
foreign marking were recovered from the
possession of the detenu was sufficient for
subjective satisfaction of the detaining authority
in making the said order of detention. So the
detention order cannot be termed as illegal and
bad for non-supply of legible/typed copy of the
said document i.e. panchnama dated 12-2-1988.
The panchnama dated 12-2-1988 which had been
referred to in the list of documents referred to in
the grounds of detention and a copy of which had
been given to the detenu along with the grounds
of detention, is not at all legible as is evident
from the copy served on the detenu. It is also
not in dispute that on receiving the documents
along with the grounds of detention the detenu
had made a representation to Respondent 1
stating that some of the documents including
the panchnama which had been supplied to
him are illegible and as such a request was
made for giving typed copies of those
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documents to enable the detenu to make an
effective representation against the same. The
detaining authority on receipt of the said
representation sent a reply denying that the
copies of those documents were illegible and
refusing to supply typed copies of the same. It
is clearly provided in sub-article (5) of Article
22 of the Constitution of India that:
"(5) When any person is detained in
pursuance of an order made under any
law providing for preventive
detention, the authority making the
order shall, as soon as may be,
communicate to such person the
grounds on which the order has been
made and shall afford him the earliest
opportunity of making a
representation against the order."
Therefore, it is imperative that the detaining
authority has to serve the grounds of detention
which include also all the relevant documents
which had been considered in forming the
subjective satisfaction by the detaining
authority before making the order of
detention and referred to in the list of
documents accompanying the grounds of
detention in order to enable the detenu to
make an effective representation to the
Advisory Board as well as to the detaining
authority. Therefore, the non-supply of legible
copy of this vital document i.e. panchnama
dated 12-2-1988 in spite of the request made
by the detenu to supply the same renders the
order of detention illegal and bad. This Court
in Mehrunissa v. State of Maharashtra [(1981) 2
SCC 709 : 1981 SCC (Cri) 592 : AIR 1981 SC
1861] has observed that: (SCC p. 710)
"The detenu was entitled to be supplied
with copies of all material documents
instead of having to rely upon his
memory in regard to the contents of the
documents. The failure of the detaining
authority to supply copies of such
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documents vitiated the detention, as has
been held by this Court in the two cases
cited by counsel. The detenu is,
therefore, entitled to be released. He is
accordingly directed to be released
forthwith."
51. To the similar effect are the observations recorded in the
judgment of the Apex Court in Manjeet Singh Grewal vs.
UOI & Ors. reported as 1990 Supp SCC 59.
52. Insofar as the third issue, as to whether the order of detention
is 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 order.
53. It is the petitioner's submission that there was inordinate and
unexplained delay of 272 days in passing the impugned
detention order from the date of the alleged initial incident.
54. In this regard, it is submitted on behalf of the petitioner 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
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November, 2019 and that the proposal for detention was
resultantly analysed on 02.01.2020, which was then put up
before the Central Screening Committee on 13.01.2020; and
after receiving the recommendations 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.
55. 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 detenu to re-agitate the same before this
court. The respondents have alternatively submitted that the
plea of delay cannot be taken when the same is satisfactorily
explained, as in the present case.
56. The petitioner has sought to counter the said argument 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 the
petitioner that, it is only upon the receipt of the detention
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order that the petitioner became aware that reference to
overseas evidence from Dubai which was allegedly received
by the DRI in November, 2019, was conspicuous by its
absence in the detention order; and no material or documents
in this regard were placed before the Detaining Authority. As
a matter of fact, what emerges from the detention order, is the
position that all the material evidence, including the
purported overseas evidence, sought to be relied upon against
the petitioner, had already been collected, as early as in July,
2019, as is clear from the record, and had already culminated
into the issuance of 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 massive delay that transpired from the time of
issuance of the said Show Cause Notice dated 26.09.2019 and
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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57. 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 order.
58. We are, therefore, of the view that in the absence of any
mention of such overseas evidence in the subject detention
order, the same cannot be considered as germane in order to
satisfactorily explain the delay occasioned in passing of the
impugned order of detention.
59. 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 order. 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 away the delay on that count. This Court is
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therefore obliged to re-consider the issue of delay at the post-
execution stage in the present proceedings.
60. 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 order of
detention on the ground of inordinate and unexplained delay,
a fortiori we are of the view that there has been substantial,
unexplained delay in passing the impugned order of
detention. As a result, in the absence of any satisfactory
explanation for it, the inordinate delay leads to snapping of
the required live and proximate link and direct nexus with the
immediate need to detain the petitioner.
61. 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
whilst considering the question of delay in relation to
detention order, has observed as follows:-
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"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.
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
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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 detenu, 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 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."
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62. 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 detenu and
the necessity of the passing of order of detention qua the
petitioner stands broken.
63. We hasten to add that, whilst arriving on this conclusion, we
have given our careful consideration to the judgments relied
upon by the respondents on the question of delay in issuing
the order 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
was examined as any other ordinary writ petition. In this
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behalf, the Hon'ble Supreme Court held as under in the
concluding paragraph:-
"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."
64. A plain reading of the paragraph extracted above 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.
65. 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.
66. In Licil Antony (supra) the said decision, while dealing with
the question of delay, the Hon'ble Supreme Court in
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paragraph 18 thereof has 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'.
67. The facts and circumstances, which demonstrates the
snapping of the live-link between the alleged prejudicial
activity and the purpose of detention have been copiously
detailed in the petition and the written submissions filed on
behalf of the petitioner.
68. The present case is, therefore, entirely distinguishable on the
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 17.11.2012 and the proposal for detention
dated 17.12.2012 was received by the Detaining Authority on
21.12.2012.
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69. In the present case, however, the petitioner was admittedly
arrested on 26.04.2019, 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 petitioner
and the proposal for detention by the Sponsoring Authority
to the Detaining Authority; which is in complete contrast,
when compared to delay of just one month in the relied upon
decision in Licil Antony (supra).
70. 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 these circumstances that the
delay in passing the detention order was considered
satisfactory in the facts and circumstances of Licil Antony
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(supra). However, in the present case, as elaborated
hereinabove, there has been no satisfactory explanation
forthcoming as to why there was delay of more than 08
months on the part of the Sponsoring Authority in issuing a
proposal for the detention of the petitioner.
71. 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 do not support their contentions in the present
case.
72. 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 this Court in Mohd. Nashruddin vs. Union of India
& Ors., W.P.(CRL.) No.786/2020 decided on 11.09.2020,
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wherein it was held that there was no delay in passing of the
impugned detention order.
73. In this behalf, it is observed that, this Court was clearly dis-
inclined to accept the argument of delay urged on behalf of
the detenu 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 order at
the pre-detention stage, the petitioner admittedly did not have
access to the detention order, the grounds thereto, as well as
the Relied Upon Documents, since the same were served
upon him only on 12.10.2020, pursuant upon his arrest and
detention.
74. It is at that stage, the petitioner became aware for the first time
about the absence of the details and particulars of overseas
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evidence from Dubai in November, 2019, since the same was
neither mentioned in the impugned detention order nor
formed part of the Relied Upon Documents. It is in this view
of the matter, as well as in light of 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 since 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 order
at the post-detention stage are entirely different.
75. The fourth issue that requires adjudication is whether the
impugned detention order is vitiated on account of non-
application of mind. In this behalf, we are constrained to
observe that in the grounds of detention, strong reliance has
been placed upon the statements of the detenu 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
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by the Detaining Authority, for arriving at its subjective
satisfaction.
76. It is immediately evident, however, that the Detaining
Authority did not consider the circumstance that the detenu,
and the co-detenus and others, whose statements formed the
basis of the grounds of detention, had long since retracted
their statements. In this behalf, the impugned order 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 order.
This circumstance highlights the considerable gap of time
between the retraction of the statements by the detenu and co-
detenus, and rebuttal thereof by the DRI. This belated
rebuttal on the part of the official respondents was relevant
and 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
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passing of the impugned order 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
detenu but also the statements allegedly recorded of Vikram
Bhasin and Mahesh Jain, statedly the co-accused in the
prosecution. 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 had evidently not
been 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 also assumed great relevance in
the factual backdrop of the present case. Consequently, the
admissibility of the said statements becomes questionable
once there is a retraction, which issue merited consideration,
not accorded to it by the Detaining Authority.
77. In this behalf, it is also trite to say that the Sponsoring
Authority was under legal obligation to have placed the said
retractions before the Detaining Authority for the latter's
subjective satisfaction.
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78. In this behalf, it would be profitable 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
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
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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."
79. 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 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
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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] )."
80. Further, in Ashadevi vs. K. Shivraj, reported (1979) 1 SCC
222 the Hon'ble Supreme Court has 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
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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 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
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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 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
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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."
81. In Union of India vs. Ranu Bhandari, reported as (2008) 17
SCC 348, the Hon'ble Supreme Court has also 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.
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34. In the said circumstances, we do not see any
reason to interfere with the judgment and order of
the 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."
82. 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 order is primarily based, should be
supplied to the detenu and not any and every document; 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."
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83. In view of the above extracted decisions, the legal position
that emerges on this aspect is that, if the documents are
relevant and have a direct bearing on the case, they were
required to have been placed before the Detaining Authority
for its 'subjective satisfaction'.
84. 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 petitioner,
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 fourth issue by observing that the
Detaining Authority fell into error in not considering the vital
material, thereby vitiating its subjective satisfaction, being hit
by the vice of non-application of mind.
85. As far as the fifth issue is concerned, we observe that the
Detaining Authority whilst arriving at its 'subjective
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satisfaction' failed to properly examine whether the detenu
exhibited propensity to continue indulging in any prejudicial
activities, for the reason that there was no consideration of
the circumstance that despite the fact that the passport of the
detenu was released by DRI on 07.01.2020, he did not
attempt to travel abroad; as well as the fact that IMNPL had
been placed under the Denied Entity List, thereby clearly
indicating 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 order.
86. The decision to place IMNPL under the Denied Entity List
was taken by the DGFT pursuant to an UO Note dated
21.06.2019, issued by the DRI; which note was never placed
before the Detaining Authority.
87. Also the factum of suspension of Vikram Bhasin, the co-
accused, who was the Jewellery Appraiser, was neither
placed before nor considered by the Detaining Authority. It
this behalf, it would be pertinent to observe that it was the
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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 its due consideration of the
Detaining Authority.
88. Lastly, the Detaining Authority did not consider the conduct
of the detenu, post his enlargement on bail whilst rendering
the impugned order of detention, since despite the release of
his passport and the granting of the requisite permission to
travel abroad, the detenu voluntarily chose not to travel
overseas, clearly and unequivocally establishing his bona
fides and debunking the arguments of his propensity to
continue to indulge in prejudicial activities in the immediate
future. This was never brought to the notice of the Detaining
Authority, thereby precluding the latter from considering this
relevant and germane circumstance, whilst arriving at its
subjective satisfaction in this behalf.
89. Additionally, the order of CESTAT dated 13.11.2019
directing the provisional release of the goods, was also a
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relevant factor, that was not accorded any consideration by
the Detaining Authority, in the present case.
90. We are, therefore, of the view that the Detaining Authority
has erred in arriving at the finding qua the propensity of the
detenu to involve himself in further prejudicial activities, by
failing to consider the facts and circumstances, elaborated
hereinabove.
91. On the sixth issue regarding the delay on the part of the
Central Government in deciding the representation filed by
the detenu, it would be relevant to consider the circumstance
that the detenu was detained on 12.10.2020 and filed
representation dated 27.10.2020 with the Detaining
Authority, as well as before the Central Government.
Although the Detaining Authority rejected his representation
on 09.11.2020, no decision was taken by the Central
Government on the detenu's representation. Instead the
Central Government made a reference dated 10.11.2020 to
the Central Advisory Board, which gave its opinion qua the
sufficiency of the grounds with regard to the detenu's
detention. The subject representation was finally rejected by
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the Central Government only on 23.12.2020, three days after
confirmation by it of the order of detention by the Central
Advisory Board.
92. A bare perusal of the above clearly reflects that there was
massive delay of 57 days by the Central Government in
dealing with the petitioner's representation.
93. In Ankit Ashok Jalan vs. Union of India and Others,
reported as (2020) 16 SCC 127, the Hon'ble Supreme Court
has 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:
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
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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) 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."
94. It is, therefore, well settled that the right of the detenu to make
a representation and have it considered by the appropriate
Government with expedition, is a constitutional right under
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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.
95. In this view of the matter and the circumstance that this
proposition is too well settled by a long line of decisions, it is
not considered necessary for us to examine the authorities
relied upon by the respondents on this aspect.
96. We, therefore, hold that there has been inordinate and
unexplained delay on the part of the Central Government in
deciding the statutory representation filed by the detenu.
97. 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.
98. The petitioner herein have produced certified copies of the
detention order 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
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purposive, comparative consideration of the grounds of
detention dated 17.05.2019 in Dimple Happy Dhakad
(supra), also passed by Mr. R.P. Singh, the Detaining
Authority in these proceedings and the impugned detention
order, the inference clearly 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 leads but to one inescapable conclusion,
that the entire exercise of passing the detention order was
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 demonstrates clear non-
application of mind.
99. We, therefore, hold that the impugned order of detention is
vitiated on this ground as well.
100. In view of the foregoing discussion, and having accorded our
thoughtful consideration to the material on record, the issues
struck hereinabove are decided in favour of the detenu and
against the respondents.
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101. The writ petition accordingly succeeds. In the result, the
detention order bearing No. PD-12001/03/2020-COFEPOSA
dated 21.01.2020 passed against the detenu is set-aside and
quashed. The detenu is directed to be set at liberty forthwith
unless his custody is required in connection with any other
case.
102. The writ petition is disposed of in the above terms.
103. 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 13, 2021
dn/di
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