Delhi High Court

Ravi Chandra Mishra vs Union Of India & Ors. on 2 November, 2022

                                 Neutral Citation No.: 2022/DHC/004589




     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  Judgment Pronounced On: 02.11.2022


+ W.P.(CRL) 874/2022

RAVI CHANDRA MISHRA                                      ..... Petitioner

                                       Versus



UNION OF INDIA AND ORS.                                  .....Respondents

Advocates who appeared in this case:

For the Petitioner:    Mr. Shubhankar Jha, Advocate.
For the Respondents:   Mr. Kirtiman Singh, CGSC for UOI alongwith Mr. Waize Ali
                       Noor and Ms. Vidhi Jain, Advocates.

CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MR. JUSTICE AMIT SHARMA

                              JUDGMENT

SIDDHARTH MRIDUL, J

1. The present writ petition under Article 226 of the Constitution

of India read with Section 482 of the Code of Criminal Procedure

1973, has been instituted on behalf of Ravi Chandra Mishra

(hereinafter referred to as „the detenu‟), praying for a direction in the

nature of certiorari for quashing of the detention order bearing F.NO.

PD-12001/19/2021-COFEPOSA, dated 28.12.2021, issued under

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Section 3(1) of the Conservation of Foreign Exchange and Prevention

of Smuggling Activities Act, 1974 (hereinafter referred to as

"COFEPOSA") against the petitioner/detenu; and for further

directions that the detenu be set at liberty forthwith. At the outset, it

would be pertinent to note that vide common judgment dated

02.05.2022, in the case titled Zakir Khan vs. Union of India & Ors.,

reported as 2022 SCC OnLine Del 1284, this Court quashed and set

aside detention orders issued against the co-detenus therein.

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: -

2.1. The detenu is engaged in his profession as a Customs House

Agent ("CHA") and has been handling the customs clearing

work for various importers/exporters at customs ports in

Kolkata and other Indian ports. The investigation against the

detenu emanates from an investigation initiated by Income

Tax Department and thereafter by the Directorate of

Revenue Intelligence ("DRI") against one Zakir Khan

whose consignments were cleared as a CHA by the detenu.

Neutral Citation No.: 2022/DHC/004589

The detenu, it is alleged, cleared import consignments of

Zakir Khan's firms knowingly and being fully aware of the

fact that Zakir Khan used to import old and used laptops,

mobile phones, computer/mobile accessories from Dubai,

Hong Kong, China and USA by mis-declaration and

undervaluation in order to evade customs duty. The detenu

has allegedly actively abetted the commission of offences

under the Customs Act, 1962 leading to the evasion of

customs duty.

2.2. That, Zakir Khan and one Sanjeev Kumar Yadav (also a

Customs house agent) were summoned to the Office of DRI,

and their voluntary statements dated 18/19.10.2021 tendered

under Section 108 of the Customs Act, 1962 were recorded

wherein they allegedly admitted to their involvement in the

import of electronic goods by way of mis-declaration and

gross under-valuation through dummy import firms. Both

Zakir Khan and Sanjeev Kumar Yadav were arrested on

19.10.2021 under the Customs Act, 1962 and remanded to

judicial custody. Subsequently on 26.11.2021, detention

orders were passed against Zakir Khan and Sanjeev Kumar

Neutral Citation No.: 2022/DHC/004589

Yadav; pursuant to their arrest by the DRI for the

commission of alleged offences, punishable u/s

132/135(1)(a)(b) of the Customs Act, 1962.

2.3. It is asseverated by the official respondent that, based on

information received from the Income Tax Department; the

DRI, Kolkata Zonal Unit initiated search proceedings on

22.10.2021 at the office premises of customs broker firm

M/s Jyoti Enterprises located at Room No. 908A, Diamond

Heritage Building, 16, Strand Road, Kolkata; the proprietor

of which firm is allegedly the detenu herein. That during the

search proceedings, documents of M/s Indo Fabs, M/s Viha

International and M/s R. K. Overseas were resumed for

further investigation; the de-facto control/ownership of

which three firms allegedly vested with Mr. Zakir Khan,

although they operated as dummy firms with different

proprietors who served as de-jure owners. In his statement

under section 108 of the Customs Act, the detenu admitted

to his involvement in import of electronic goods by way of

mis-declaration and gross under-valuation through the

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aforementioned import firms allegedly owned/ controlled by

Zakir Khan.

2.4. That upon further examination/ valuation of goods imported

under the aegis of the aforementioned firms, purportedly

owned/controlled by Zakir Khan, a Show Cause Notice

(SCN) No. 01/2022 dated 08.04.2022 was issued by the

DRI, wherein it has been proposed to confiscate the

following goods being illegally imported by M/s Indo Fabs

(IEC- FKSPM5899G) vide Container No. PCIU8689880,

valued at Rs. 21,05,85,480/- (Rupees Twenty One Crore

Five Lakh and Eighty Five thousand Four Hundred and

Eight Only), and goods imported by M/s R K Overseas

(IEC- AMHPR9196F) vide Container No. WHLU5698385,

valued at Rs. 12,20,37,060/- (Rupees Twelve Crore Twenty

Lakhs Thirty Seven thousand and Sixty Only) and goods

imported by M/s Viha International (IEC- HMPPS4660J)

vide Container No. PCIU8010617, valued Rs.

13,32,92,300/- (Rupees Thirteen Crore Thirty Two Lakhs

Ninety Two thousand and Three hundred Only).

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2.5. That during the forensic analysis of mobile phones resumed

by the Income Tax Department, a WhatsApp group in the

name "Yoga with twist" was discovered installed allegedly

in the mobile phone of Zakir Khan, wherein Zakir Khan is

the group administrator and the other participants of the

group include Zakir Khan‟s China Mobile number, one

Priyanka Razdan‟s two Mobile Nos. and also the Mobile

No. of the detenu. In the said group, the said Priyanka

Razdan shared a Bill of Lading number corresponding to

container number WHLU5698385 which is allegedly

indicative of the fact that the detenu was well aware of the

actual quantity and description of the restricted goods being

so imported.

2.6. That the detenu was summoned to the Office of DRI and his

voluntary statement dated 26/27.11.2021, tendered under

Section 108 of the Customs Act, was recorded. Thereupon

the detenu was arrested on the 27.11.2021 and sent to

judicial custody. Further, the DRI submitted a proposal for

detention of the detenu under the COFEPOSA Act before

the Joint Secretary, COFEPOSA on 16.12.2021; in

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pursuance thereto, the impugned detention order was issued

on 28.12.2021. The said detention order was statedly served

on the detenu along with the grounds of detention, on the

29.12.2021 at the Tihar Jail, New Delhi, under alleged

acknowledgement. Further, the COFEPOSA Advisory

Board opined that there existed sufficient grounds for the

detention of Sh. Ravi Chandra Mishra/the detenu.

Accordingly, vide order dated 21.02.2022, the Central

Government has considered the opinion/report of the

Advisory Board and confirmed the impugned detention

order. Accordingly, the detenu is presently detained and

lodged at the Tihar Central Jail, New Delhi.

3. A perusal of the grounds of detention, impugned in these

proceedings reveal that the role assigned therein to the detenu,

pursuant to the investigation carried out, is substantially to the effect

that:-

(a) The detenu played a vital role in evasion of customs duty by

repeatedly resorting to gross undervaluation and misdeclaration

of imported goods; and that the detenu facilitated customs

clearance of imported goods knowing well that the same were

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mis-declared.

(b) Investigation conducted by the DRI allegedly establishes the

detenu‟s continued propensity and inclination to indulge in the

acts of smuggling in a planned manner, to the detriment of the

economic security of the country and that unless prevented the

detenu will continue to do so. The detenu, in his statements

under section 108 of the Customs Act and section 132(4) of the

Income Tax Act, 1961, has assertedly admitted to his

involvement in the illegal import of various electronic goods

and accessories in the names of various dummy entities

controlled by Zakir Khan and that the true value and nature of

the goods were evidently not declared the Customs authorities.

the detenu had engaged himself in an organized manner; and

upon consideration of such prejudicial activities and the

detenu‟s role therein; all of which reflect the detenu‟s high

potentiality and propensity to indulge in such prejudicial

activities in the future; therefore, it was concluded by the

sponsoring authority that there is a need to prevent the detenu

from smuggling of goods.

Neutral Citation No.: 2022/DHC/004589

ARGUMENTS ON BEHALF OF THE PETITIONERS: -

4. Mr. Shubhankar Jha, learned counsel appearing on behalf of the

detenu vehemently assails the impugned order of detention whilst

submitting that the non-supply of relied upon documents (hereinafter

referred to as the „RUDs‟) has jeopardized the only right available to

the detenu i.e. the right of making an effective representation. Further

that, it is now an admitted position with regard to the supply of

illegible copies of the subject RUDs, including but not limited to,

those supplied to the detenu; and the axiomatic consequential non-

consideration thereof by the Detaining Authority rendering the

impugned detention order as invalid; specifically in light of the

decision of this Court in Zakir Khan v. Union of India & Ors.

reported as 2022 SCC OnLine Del 1284; and consequently, the

detenu urges release from detention on the ground of parity as being

better placed than the detenus in the Zakir (Supra) case. In this regard,

counsel appearing on behalf of the detenu limits the challenge in the

present petition to the solitary ground of the non-supply of certain

RUDs, which clearly infringe on the detenu‟s constitutional

guaranteed right under Article 22(5) of the Constitution of India; and

that the admitted supply of illegible/dim of RUDs, undeniably vitiates

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the subjective satisfaction arrived at by the detaining authority.

5. It is submitted in this behalf that, non-supply of vital

documents, relied/referred in the grounds of detention have evidently

not been served upon the detenu, despite his specific request in this

behalf, to the detaining authority vide letter dated 19.01.2022

(Annexure 5); and the circumstance that the said request was rejected

the very next day i.e., 20.01.2022 (Annexure 6) by the detaining

authority. It is submitted that rejection of the said request further

curtailed the detenu‟s constitutional protection under Article 22(5) of

the Constitution of India read with Section 3(3) of the COFEPOSA.

6. It is further submitted that, a large number of

illegible/dim/blank RUDs referred to by the detaining authority have

also not been supplied to the detenu at all, despite various specific

demands made on behalf of the detenu vide representation(s) dated

17.01.2022 (Annexure 7) to the COFEPOSA Advisory Board, Delhi

High Court through electronic mail, and request dated 21.01.2022

(Annexure 8) to the Central Govt. through the Central Economic

Bureau as well as to the Detaining Authority i.e. Joint Secretary

COFEPOSA; thereby vehemently urging that the detenu‟s

constitutional right to an effective representation was curtailed, owing

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to the non-supply/supply of illegible RUDs and the same being relied

upon by the detaining authority while passing the impugned detention

order.

7. At this stage it is observed that in the RUDs, the following

documents were found to be completely illegible: -

Sr. No.                            Description
 of list
   of
 RUDs

4. Documents mentioned in Panchnama dated 18.10.2021 i.e. documents/ loose papers relevant to their inquiry which has been numbered as 01 to 71 and further the documents mentioned in tabulated form.

6. Documents mentioned in Panchnama drawn at office of Sanjeev Kumar Customs Broker wherein only list of documents has been furnished without supplying the said documents to the detenu.

15. Documents/ emails mentioned in Panchnama dated 18.10.2021 drawn at Customs Broker M/s Sai Dutta Clearing Agency Pvt. Ltd. Mumbai. Further documents mentioned in Annexure A to Panchnama dated 18.10.2021 not supplied to the detenu.

16. In Panchnama dated 13.10.2021 certain documents showing details of the goods found in the container and seized were enclosed as Annexure however, neither such annexure provided, nor such documents were provided to the detenu.

24. In Panchnama dated 22.10.2021 drawn at M/s Jyoti Enterprises a list of articles with number of pages seized is given in tabulated form however, no such documents have been provided to the detenu.

28,32, Order for extension of judicial remand of Zakir Khan and

44. Sanjeev Kumar was not supplied to the detenu.

44. It is mentioned in letter dated 18.11.2021 issued by Sh.

Satish Aggarwala Advocate that a certain application has

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been moved by the accused informing that they do not want to move any bail application and that the court directed that application kept on record. Copy of such application and court order in this regard was not supplied.

Other documents and RUDs that are stated to be illegible/dim and had

been supplied to the detenu are at the following page numbers of the

RUDs, Page No. 62, 63, 64, 76, 77, 79 -81, 84-85, 94, 105, 108, 133,

135-136, 142, 146, 148 - 152, 156, 171, 186-187, 223-224, 251-254,

276, 285 287, 294-296, 355- 356, 446, 503, 517-518, 521, 524, 527,

530, 533, 536, 540, 556, 586, 695, 744, 745, 748, 783, 801, 810, 820,

910-918, 921-924, 926, 928-929, 936-938, 942, 944-947, 953, 975,

976, 995- 1496, 1500-1512, 1530, 1534, 1570, 1642, 1644 (blank

page) 1646 (blank page), 1688, 1698 (blank page), 1700 (blank page),

1704 (blank page) 1706 (blank page) 1708 (blank page) 1710 (blank

page), 1715- 1723, 1726-1736, 1758, 1769, 1771-1773, 1775, 1779-

1780, 1801-1804, 1807-1810, 1812, 1877-1897, 2039, 2085-2094,

2165 (blank page) 2219, 220-2271, 2275-2276, 2278-2288, 2294-

2295, 2300, 2303-2304, 2308-2611, 2628-2629, 2683, 2692, 2724,

2744, 2746.

8. It is furthermore reiterated that, not furnishing or supplying the

relevant material or documents despite admitted demand, is grossly

violative of the fundamental rights of the detenu as enshrined and

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guaranteed under Articles 14, 21 & 22(5) of the Constitution of India.

9. The learned counsel appearing on behalf of the detenu submits

that the detaining authority could not have arrived at its subjective

satisfaction while issuing the detention order, based upon illegible

RUDs and specious allegations made by the sponsoring authority.

There was no subjective satisfaction and considered formulation of

grounds on the part of the detaining authority, which could warrant the

passing of the detention order under Section 3(1) of the COFEPOSA.

The detaining authority has relied upon certain documents, copies

whereof were not made a part of the RUDs and those supplied, were

admittedly dim/illegible. It is therefore submitted that there was a

glaring non-application of mind by the detaining authority, which

entirely and unequivocally vitiates the impugned order of detention,

since the fundamental right of the detenu to make an effective

representation has thereby been rendered nugatory and illusory.

10. In order to buttress his exhaustive submissions, Mr. Shubhankar

Jha learned counsel appearing on behalf of the detenu, has pressed into

reliance the following decisions: -

i. Zakir Khan v. Union of India & Ors. reported as 2022 SCC OnLine Del 1284.

ii. Powanammal v. State of T.N. & Anr. reported as 1999 2 Supreme Court Cases 413.

Neutral Citation No.: 2022/DHC/004589

iii. Mohd. Nashruddin v. Union of India, reported as 2021 SCC OnLine Del 4017.

iv. Ankit Ashok Jalan v. Union of India, reported as (2020) 16 SCC 127.

v. Tsering Dolkar v. Administrator, Union Territory of Delhi & Ors. reported as (1987) 2 Supreme Court Cases 69.

ARGUMENTS ON BEHALF OF THE RESPONDENT

11. Per Contra, Mr. Kirtiman Singh, the learned Central

Government Standing Counsel appearing on behalf of the official

respondents would submit that the impugned detention order dated

28.12.2021 was passed by the detaining authority under Section 3 (1)

of the COFEPOSA only after arriving at his subjective satisfaction

based on relevant and sufficient material. It is further submitted that it

is settled law as held by the Hon‟ble Supreme Court in a catena of

judgments that if there is some material before the detaining authority

to arrive at his subjective satisfaction with regard to the propensity of

the proposed detenu being involved in prejudicial activities in the

future, the contention of non-consideration of other

documents/material cannot be a ground for vitiating the detention

order.

12. It is urged that, founded on the documents and the materials

placed before the detaining authority and considering the individual

role of the detenu, the detaining authority satisfied himself as to the

detenu‟s continued propensity and inclination to indulge in prejudicial

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acts towards the Customs authorities in a planned manner to the

detriment of the economic security of the country and concluded that

there was a need to prevent the detenu from smuggling goods.

13. The learned CGSC asserted, vehemently on behalf of the Union

of India, in his oral arguments that, it is incumbent upon the detenu to

show that prejudice was caused to him, owing to the illegible RUDs. It

is further submitted that the detenu must show that the failure to

supply the RUDs or the supply of illegible RUDs had impaired or

prejudiced his right, however, slight or insignificant it may be.

14. Lastly, without prejudice to other rights and contentions,

learned CGSC submits that, it is well settled that by virtue of Section

5-A of COFEPOSA, when the detention order is based on more than

one grounds, independent of the other, the detention order will survive

whether or not one of the grounds is found to be non-existent or

legally unsustainable. It is further submitted that assuming albeit not

admitting the contention of the detenu that certain non-vital

documents supplied to the detenu were illegible, the principle of

segregation as contained in Section 5-A of COFEPOSA will be

attracted, therefore making the detention order valid.

15. In support of his arguments, Mr. Kirtiman Singh, learned CGSC

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appearing on behalf of the respondent has placed reliance on the

following decisions: -

i. Naresh Kumar Goyal v. Union of India and Others, reported as (2005) 8 SCC 276.

ii. State of Maharashtra and others v. Bhaurao Punjabrao Gawande, reported as (2008) 3 SCC 613.

iii. Sunila Jain v. Union of India & Anr. reported as 2006 (3) SCC 321.

iv. Adishwar Jain v. Union of India & Anr. reported as 2006 (11) SCC 339.

v. Radhakrishnan Prabhakaran v. State of Tamil Nadu reported as 2000 (9) SCC 170.

vi. Kamarunnissa Etc. v. Union of India and Ors, reported as 1991 AIR SC 1640.

DISCUSSSION

16. Having heard learned counsel appearing on behalf of the parties

and after due consideration of the rival submissions in the context of

the present facts and circumstances, as well as the relevant provisions

of law and the decisions relied upon by the parties; and having perused

the material on record the following issues arise for the consideration

of this Court in these proceedings: -

A) Whether the supply of illegible RUDs vitiates the subjective

satisfaction of the detaining authority thereby rendering the

impugned detention order invalid.

B) Whether in the event that issue (A) is answered in the

affirmative, the argument premised on S.5A of the

COFEPOSA Act, in the facts and circumstances of the

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present case will have the effect of saving the detention

order from invalidation.

C) Whether the present detenu is similarly placed as the

detenus in the Zakir (supra) case so as to attract the ground

of parity.

17. We find it apposite at this stage to consider and reiterate the

observations made by the Hon‟ble Supreme Court in a recent decision

in Mallada K. Sri Ram vs. The State of Telangana & Ors. in

Criminal Appeal No. 561 of 2022 (Arising out of SLP(Crl) No.

1788 of 2022, reported as LQ/SC/2022/476, specifically paragraph 15

as is reproduced hereunder: -

"15. A mere apprehension of a breach of law and order is not sufficient to meet the standard of adversely affecting the maintenance of public order. In this case, the apprehension of a disturbance to public order owing to a crime that was reported over seven months prior to the detention order has no basis in fact. The apprehension of an adverse impact to public order is a mere surmise of the detaining authority, especially when there have been no reports of unrest since the detenu was released on bail on 8 January 2021 and detained with effect from 26 June 2021. The nature of the allegations against the detenu are grave. However, the personal liberty of an accused cannot be sacrificed on the altar of preventive detention merely because a person is implicated in a criminal proceeding. The powers of preventive detention are exceptional and even draconian. Tracing their origin to the colonial era, they have been continued with strict constitutional safeguards against abuse. Article 22 of the Constitution was specifically inserted and extensively debated in the Constituent Assembly to ensure that the exceptional powers of preventive detention do not devolve into a draconian and

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arbitrary exercise of state authority. The case at hand is a clear example of non-application of mind to material circumstances having a bearing on the subjective satisfaction of the detaining authority. The two FIRs which were registered against the detenu are capable of being dealt by the ordinary course of criminal law."

18. Insofar as the issue, as to whether the non-supply of certain

RUDs and the supply of illegible RUDs, vitiates the subjective

satisfaction arrived at by the Detaining Authority; and whether the

detention order resultantly passed is vitiated on the ground of non-

application of mind, is concerned; we have considered the rival

submissions made before us in the backdrop of the perusal of the

record as well as the material placed before us in the present

proceedings.

19. In this regard it is pertinent to note that, in connected writ

petitions being W.P.(CRL) No. 72/2022 & W.P.(CRL) No. 73/2022

instituted on behalf of similarly situated individuals i.e. Zakir Khan

and Sanjeev Kumar Yadav, this Court vide order dated 03.03.2022

observed as follows: -

"Mr. Vikram Chaudhri, learned senior counsel appearing on behalf of the petitioners in these writ petitions has handed over in Court today the original set of relied upon documents RUDs furnished to the detenues at the time of their detention.

The Court has perused the said documents. The Court has further asked Mr. Sumit Kumar, Senior Intelligence Officer, Directorate of Revenue Intelligence to examine the said original documents and inform this court as to whether they are the set of documents that were served upon the detenues.

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The said official appearing on behalf of DRI confirms that the set of documents produced in court on behalf of the detenues are the originals, which were served upon them at the time of their detention."

20. It is observed that the Ld. CGSC in the present petition has

fairly admitted in oral submissions that the RUDs supplied to the

detenu were the same as those supplied in the Zakir (Supra) case as

the present petition arose from the same investigation. Therefore,

several RUDs supplied to the detenu, as well as those on the record

with the detaining authority were admittedly illegible/dim/blank

pages. In this regard this Court‟s in Mohd. Nashruddin v. Union of

India & Ors., reported as 2021 SCC OnLine Del 4017 observed as

follows: -

"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, W.P.(CRL.) 1924/2020 Page 52 of 86 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 codetenu‟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

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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 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 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

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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 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."

21. Further, in Union of India vs. Ranu Bhandari, reported as

(2008) 17 SCC 348, the Hon‟ble Supreme Court has observed as

follows: -

"33. In the instant case, as some of the vital documents which have a direct bearing on the detention order, had not been placed before the detaining authority, there was sufficient ground for the detenu to question such omission. We are also of the view that on account of the non-supply of the documents mentioned hereinbefore, the detenu was prevented from making an effective representation against his detention.

34. In the said circumstances, we do not see any reason to interfere with the judgment and order of the High Court and the appeal is accordingly dismissed.

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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."

22. In view of the admitted position by the official respondents and

the above extracted decision of this court, we are of the opinion that,

the RUDs supplied to the detenu, as well as, relied upon by the

Detaining Authority in arriving at its „subjective satisfaction‟ were

admittedly illegible, therefore, grossly violating the constitutional

right of making an effective representation, guaranteed to the detenu

under Articles 14,21 and 22(5) of the Constitution of India.

23. In this behalf, the contention made on behalf of the official

respondents is to the effect that, it is incumbent upon the detenu to

show that prejudice was caused to him owing to the supply of illegible

RUDs; the specific contention being that, the detenu must establish

that the failure to supply the RUDs or the supply of illegible RUDs

had impaired or prejudiced his right.

24. In our opinion, the aforementioned contention raised on behalf

on the official respondents is untenable in light of the Hon‟ble

Supreme Court‟s decision in Mrs. Tsering Dolkar vs. Administrator,

Union Territory Of Delhi & Others reported as (1987) 2 SCC 69 and

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in particular paragraph 12, wherein it was observed as under: -

"12. The learned Additional Solicitor General relied upon the feature that the petitioner-wife knew both English and Tibetan languages and an effective representation as a fact had been made. There can be no two opinions that the requirement of law within the provisions of Article 22(5) of the Constitution is that the detenu has to be informed about the grounds of detention in a language which he understands. The fact that the detenus wife knew the language in which the grounds were flamed does not satisfy the legal requirement. Reliance was placed by the learned Additional Solicitor General on a decision of this Court in Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala &Ors., [1985] 3 SCR 679 in support of his contention that unless the detenu was able to establish prejudice on account of the fact that the grounds of detention and the documents accompanying the grounds were not in a language known to the detenu the order would not be vitiated. There is no clear indication of the test of prejudice being applied in that case. On the facts relevant before the Court, a conclusion was reached that the detenu was merely reigning ignorance of English and on the footing that he knew English, the matter was disposed of. We must make it clear that the law as laid down by this Court clearly indicates that in the matter of preventive detention, the test is not one of prejudice but one of strict compliance with the provisions of the Act and when there is a failure to comply with those requirements it becomes difficult to sustain the order. (See AIR 1975 SC 1513, [1975] 2 SCR 832 , AIR 1975 SC 245 )."

25. It is trite to say that when a person is detained in pursuance to

an order of preventive detention, the statutory authorities are

constitutionally charged with the responsibility of ensuring that the

grounds of detention, including legible copies of all RUDs and other

relevant documents that are considered whilst forming the subjective

satisfaction, 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

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failure and non-supply of legible copies of all RUDs despite of a

request and representation made by the detenu for the supply of the

same, renders the order of detention illegal and bad in law; and vitiates

the subjective satisfaction arrived at by the detaining authority.

26. The decision of the Hon‟ble Supreme Court in Kamarunnisa

vs. Union of India, reported as (1991) 1 SCC 128, does not come to

the aid of the official respondents, since in the present case, we agree

with the submissions made on behalf of the detenu, that the present is

a case of non-placement of vital facts and documents before the

Detaining Authority owing to their illegibility and that the „subjective

satisfaction‟ is vitiated since the latter was not in possession of vital

RUDs. The ratio in Kamarunnisa (supra) is, therefore,

distinguishable on the facts thereof. Therefore, we have no hesitation

in holding that, the Detaining Authority fell into error in relying upon

illegible documents which is the equivalent of non-placement of

RUDs, by the act of omitting them from consideration, thereby

vitiating its subjective satisfaction, for suffering from the vice of non-

application of mind.

27. The reliance placed by the respondent upon the decision of

Gautam Jain v. Union of India, reported as (2017) 3 SCC 133, does

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not come to their assistance, since in the present case we are in

agreement with the submissions made on behalf of the detenu. The

Hon'ble Supreme Court enunciated therein, the undisputed legal

position that, if the detention order is based on more than one grounds,

independent of each other, then the detention order will still survive

even if one of the grounds is found to be is non-existing or legally

unsustainable. However, it must be observed that, on the other hand, if

the detention order is founded substantially on one composite ground,

though containing various species or sub-heads, the detention order

would be vitiated if such ground is found fault with.

28. The present petition does not attract the dictum enunciated in

Gautam Jain (Supra), since the grounds of detention in the present

petition are not severable, in view of the patent and palpable vice of

non-application of mind by the detaining authority antecedent and

attendant in the passing of the detention order. Premised on averments

made of behalf of the Respondents, it is found that illegible documents

supplied to the detenu were clearly and categorically admitted to have

been relied upon by the detaining authority. Therefore, the present

petition is distinguishable from the aforementioned case; as the very

grounds of detention in these impugned orders are not severable in the

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peculiar facts and circumstances of the present petition.

29. Thus, insofar as the issue, as to whether the argument premised

on S.5A of the COFEPOSA Act by the official respondents has the

effect of saving the detention order; in the facts and circumstances of

the present case is concerned; we are of the considered opinion that, in

cases where the order of detention fails on the ground that the

„subjective satisfaction‟ of the detaining authority is vitiated, owing to

non-application of mind; the protection afforded qua severability of

grounds stipulated under the provision of 5A of the COFEPOSA Act,

are neither attracted nor available, in law.

30. It is well settled and not in dispute that under the provisions of

Section 3 of COFEPOSA, it is only the detaining authority, which can

ultimately decide to pass or not, a detention order against any person,

and that too, after perusing each and every document and material

placed before it. It is also not in dispute that the „subjective

satisfaction‟ of the detaining authority itself is to be arrived at after

perusing all the relevant documents and material produced. This is a

constitutionally provided condition precedent for passing a valid

order of detention. It is also an admitted position that many of the

RUDs placed before the detaining authority were illegible/dim/blank

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pages. We, therefore, find considerable force in the contention that

had the detaining authority itself perused the RUDs for arriving at its

„subjective satisfaction‟ and formulation of grounds, it would have

been alive to the fact that many of the RUDs placed before it were

wholly illegible.

31. In view of the foregoing discussion, this issue is resultantly

decided in favour of the detenu and against the respondent.

32. Insofar as the issue, as to whether the detenu in the present case

is similarly placed with the detenu in the case of Zakir (Supra) is

concerned, our attention has been invited to the fact that the impugned

detention order is arising out of the same investigation, and that the

detenu was brought under the scanner owing to his abetment in

offences committed by the detenus in the Zakir case (Supra). It is an

admitted position on behalf of the official respondents that the RUDs

supplied to the detenu were the same as those supplied to the detenus

in the case of Zakir (Supra). It is also pertinent to observe that the

sponsoring authority i.e. the DRI in their impleadment application

have averred as follows:-

"4. That it is further respectfully submitted, the present matter emanates from an investigation initiated by the Income Tax Department (ITD) and thereafter by the applicant herein i.e., DRI, DZU. The investigations were initiated first against one Mr. Zakir Khan whose

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consignments were cleared by the petitioner above named. During investigations, it was revealed that Mr. Zakir Khan engaged himself in mis-declaration and under valuation of imported consignment leading to outright smuggling and these consignments were got cleared by the petitioner who was fully aware of the illegal activities being carried out Mr. Zakir Khan. The petitioner has therefore actively abetted with Mr. Zakir Khan in the commission of offences under the Customs Act thereby leading to evasion of huge amount of Custom duty.

5. That, Mr. Zakir Khan alongwith one Mr. Sanjeev Kumar Yadav (CHA) were arrested by the applicant /DRI on 19.10.2021 and subsequently the applicant/ DRI, as a sponsoring authority, brought to the notice of respondent no. 2, the various offences committed by Mr. Zakir Khan and Mr. Sanjeev Kumar Yadav under the Customs Act and the fact that the said persons had been indulging in smuggling activities in terms of the provisions of the Customs Act read with COFEPOSA which ultimately lead to their detention under the COFEPOSA.

6. That, the petitioner is similarly placed alongwith Mr. Zakir Khan and Mr. Sanjeev Kumar Yadav and in the above criminal writ petition, the petitioner has challenged his detention under the COFEPOSA."

Therefore, in view of the admitted position by the sponsoring

authority, as well as, the detaining authority, we find force in the

argument that the present detenu is similarly placed as the detenus in

the case of Zakir (Supra) and would consequently, attract the ground

of parity.

33. In view of the foregoing discussion and having accorded our

thoughtful consideration to the facts and material on record, the issues

that arose for consideration hereinabove are decided in favour of the

detenu and against the respondents. Resultantly, the impugned

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detention order stands invalidated.

34. The present writ petition accordingly succeeds. In the result, the