Bombay High Court
Mrs. Anjana Rikabchand Mehta vs The State Of Maharashtra & Others on 24 January, 2014
Author: A.S. Oka
Bench: A.S. Oka, S.C.Gupte
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.3436 OF 2013
WITH
CRIMINAL WRIT PETITION NO.3499 OF 2013
CRI.WP NO.3436 OF 2013
Mrs. Anjana Rikabchand Mehta. .. Petitioner
Vs
The State of Maharashtra & Others.
ig .. Respondents
-
Smt. A.Z. Ansari for the Petitioner.
Shri J.P. Yagnik, APP for Respondent No.1-State.
Ms. A.S. Pai, Special PP for Respondent No.3-D.R.I.
-
CRI.WP NO.3499 OF 2013
Smt. Khushbu Sandeep Jain. .. Petitioner
Vs
The State of Maharashtra & Others. .. Respondents
--
Smt. A.Z. Ansari for the Petitioner.
Shri J.P. Yagnik, APP for Respondent No.1-State.
Ms. A.S. Pai, Special PP for Respondent No.3-D.R.I.
--
CORAM : A.S. OKA & S.C.GUPTE, JJ
DATE ON WHICH SUBMISSIONS WERE HEARD : 13 DECEMBER 2013
th
DATE ON WHICH JUDGMENT IS PRONOUNCED: th JANUARY 2014
24
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JUDGMENT ( PER A.S. OKA, J )
1. By these Petitions under Article 226 of the Constitution of India, the challenge is to the separate orders dated 22 nd August 2013 passed in exercise of powers under Sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short "COFEPOSA"). Both the orders are the orders of preventive detention. The order, subject matter of challenge in Writ Petition No.3436 of 2013, is in respect of Shri Jayant Rikhabchand Mehta (for short "Jayant"). The Writ Petition has been filed by the mother of the detenu. The order dated 22 nd August 2013, subject matter of challenge in Writ Petition No.3499 of 2013, is in relation to one Shri Sandeep Jayantilal Jain (for short "Sandeep"). The said Writ Petition has been filed, on behalf of Sandeep, by his wife.
Both the impugned orders of detention have been passed with a view to prevent the detenu from abetting the smuggling of goods in future.
The grounds of detention have been served upon the detenu which are based on the same set of facts.
2. It is alleged in the grounds of detention that a specific intelligence was received that one Sagar Chheda, arriving from Dubai by flight at Chhatrapati Shivaji International Airport at Mumbai, would be carrying gold in his black coloured backpack bag and would exchange his bag containing the contraband in the toilet situated in ::: Downloaded on - 27/01/2014 23:11:32 ::: ash 3 wp-3436n3499.13(cri) corridor on the mezzanine floor of the said Airport with one Shri Uday Singh Meena, Sub-Inspector of CISF. It is alleged that the said Uday Singh Meena was apprehended along with the black coloured backpack bag which contained 5.804 kgs of gold jewellery and gold bars having estimated value of Rs.1.60 crores. The said goods were seized under the provisions of the Customs Act, 1962 (for short "the said Act of 1962"). The said Sagar Chheda was also apprehended at the Airport on the same day i.e. 10th August 2012 and he was found carrying an identical black coloured DELL backpack bag. It is alleged that the detenu Jayant arrived by the same flight who had purchased the seized contraband in Dubai and who had handed over the same to Sagar Chheda for brining the same to Mumbai. The detenu Jayant was also apprehended on the same date. It is alleged that one more passenger Atul Mangilal Bafna arrived from Dubai in the morning of 11 th August 2012. He was carrying a black coloured (DELL backpack bag) from which recovery of 4.714 kgs of gold jewellery was made which was seized under the provisions of the said Act of 1962. It is alleged that the residential premises of Sandeep was searched and even his office premises was searched, but nothing incriminating was found. Reliance has been placed on the statement of Shri Uday Singh Meena recorded under Section 108 of the said Act of 1962. Reliance is also placed on the various statements of both the Jayant and Sandeep recorded under Section 108 of the said Act of 1962. Reliance was also placed on the ::: Downloaded on - 27/01/2014 23:11:32 ::: ash 4 wp-3436n3499.13(cri) statements of Sagar Chheda recorded under Section 108 of the said Act of 1962. Further, reliance was placed on the statements of one Pravin Popatlal Jain, Atul Bafna and Mandip Jain recorded under Section 108 of the said Act of 1962. Apart from these statements, the Detaining Authority referred to and relied upon the statements of Chirag Ramesh Vora, Rajesh Bhogilal Vora and Bhavesh Walchand Parmar which were also recorded under Section 108 of the said Act of 1962. The allegation made against Sandeep Jain is that he was a kingpin of the syndicate indulging in smuggling of gold bars and gold jewellery from Dubai who had entered into a conspiracy with said Jayant , Sagar Chheda, Mandip Jain, Pravin Jain, Murarilal Meena and Uday Singh for smuggling the gold jewellery and gold bars from Dubai. It is alleged that Sandeep was the financier of the smuggling activities. It is alleged that from April 2011 till July 2011 four to five consignments were brought by Sandeep. It is alleged that Jayant was apprehended at the Airport in July 2011 by the DRI, but nothing incriminating was found with him as he had already exchanged the bag with Murarilal Meena. It is alleged that during the period of six months, since February 2012, Sandeep smuggled 120 to 140 kgs of gold bars and gold jewellery.
The allegation against Jayant is that he was a leading member of syndicate headed by Sandeep indulging in smuggling of gold bars and gold jewellery. It is alleged that he engaged in the smuggling activities since April 2011. It is alleged that initially he used to accompany ::: Downloaded on - 27/01/2014 23:11:33 ::: ash 5 wp-3436n3499.13(cri) Sandeep to Dubai for purchase of gold bars and while returning back, he used to deliver the bag containing gold bars and gold jewellery at various places. It is alleged that after July 2011 when he was once apprehended, though he did not carry contraband, he used to accompany the carriers to Dubai for purchasing and collecting goods. It is alleged that he was earning a sum of Rs.25,000/- to Rs.30,000/- per trip from the said Sandeep.
3. Learned counsel appearing for the Petitioners has made detailed submissions which are common in both the Petitions. She pointed that in both the cases, the Detaining Authority has relied upon the inculpatory statements of the detenu Sandeep recorded under Section 108 of the said Act of 1962. She pointed out that the statements were retracted at the first opportunity. However, retraction was not placed before the Detaining Authority. Her submission is that the retraction statement is a vital document. Her submission is that it was necessary to give a copy of the retraction statement to the detenu to enable him to make a representation against the order of detention.
She urged that there is non-application of mind on the part of the Detaining Authority.
4. In Writ Petition No.3436 of 2013, the learned counsel appearing for the Petitioner urged that under the panchanama dated ::: Downloaded on - 27/01/2014 23:11:33 ::: ash 6 wp-3436n3499.13(cri) 10th August 2012, the passport of the detenu Jayant was retained by the Sponsoring Authority. This vital aspect has not been considered by the Detaining Authority though the panchanama was placed before the Detaining Authority. She submitted that the statement of the said detenu shows that after July 2011, he has not indulged in any smuggling activities. She submits that non-consideration of the documents showing retention of the passport shows non-application of mind and that the subjective satisfaction is vitiated on that ground.
5. The learned counsel appearing for the Petitioner in support of both the Petitions pointed out that there is a gross delay in passing the order of detention. She pointed out that on 10 th August 2012, the DRI seized gold from Uday Singh Meena, Sub-Inspector of CISF worth Rs.1.6 crores at Mumbai Airport. The first statement of the detenu were recorded on 11th August 2012. Both Sandeep and Jayant were arrested on 11th August 2012 and they availed of benefit of order of bail on the same date. The orders of detention were belatedly made on 22nd August 2013. She submitted that there is a gross delay in passing the order of detention and hence, the live-link between the alleged prejudicial activities and necessity of passing the order of detention has been snapped. She urged that the delay has not been explained. She urged that though the impugned orders show that the subjective satisfaction was recorded of the existence of the ground under clause ::: Downloaded on - 27/01/2014 23:11:33 ::: ash 7 wp-3436n3499.13(cri)
(ii) of sub-section (1) Section 3 of COFEPOSA Act, some of the grounds of detention show that the satisfaction was recorded under some other clauses of sub-section (1) Section 3 of COFEPOSA Act.
The submission is that the variance between the satisfaction recorded in the grounds and the orders of detention shows that the satisfaction is sham and it also shows non-application of mind. It also shows the cavalier fashion in which the orders have been passed. In Writ Petition No. 3499 0f 2013 , the learned counsel urged that though the grounds refer to the fact that Sandeep was released on bail, no material to that effect was placed before the Detaining Authority. She urged that no material on this aspect has been supplied to the detenu which amounts to non communication of the grounds to the detenu depriving him of his right to make effective representation against the order of detention.
She pointed out that the Detaining Authority has considered the show cause notice dated 8th February 2013 while issuing the impugned orders of detention. Her submission is that it was incumbent upon the sponsoring authority to place before the Detaining Authority the reply to the show cause notice submitted by Sandeep as the said reply is a vital document. Her contention is that non-consideration of the said document amounts to non-application of mind and the failure to supply a copy of the said reply to the detenu amounts to denial the right conferred upon the detenu under Clause (5) of Article 22 of the Constitution of India.
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6. In support of the arguments on the ground of delay, the learned counsel appearing for the Petitioners relied upon the decisions of the Apex Court in the case of Issac Babu v. Union of India and Another1, Adishwar Jain v. Union of India and Another 2, Saeed Zakir Hussain Malik v. State of Maharashtra and Others 3 and V.C. Mohan v.
Union of India and Others4. She relied upon the judgment of the Division Bench of this Court in the case of Smt. Manisha Sukhdev Gorde v. The State of Maharashtra and Others 5 in support of her submissions.
7. On the point of variance in the satisfaction of the Detaining Authority recorded in the detention orders and in the grounds of detention, she relied upon the decisions of the Apex Court in the case of Vijay Kumar Dharna @ Koka v Union of India and Others 6, and Gimik Piotr v. State of Tamil Nadu7. She also relied upon a decision of this Court in the case of Mr. Prithvi Sovern Kuntal v. The State of Maharashtra and Others8.
8. In support of her submission based on non-placement of reply to the show cause notice, she relied upon a decision of the Apex 1 (1990)4 SCC 135 2 (2006)11 SCC 339 3 (2012)8 SCC 233 4 (2002)3 SCC 451 5 In Cri.WP No.1288 of 2013 & another decided on 28th June 2013 6 (1990)1 SCC 606 7 (2010)1 SCC 609 8 2001 ALL MR (Cri) 1163 ::: Downloaded on - 27/01/2014 23:11:33 ::: ash 9 wp-3436n3499.13(cri) Court in the case of Kurjibhai Dhanjibhai Patel v. State of Gujarat and Others9 as well as the decisions of this Court in the case of Smt. Sarina Nafees Hyder Rizvi v. State of Maharashtra and Others 10 and Smt. Pallavi Vinod Patni v. State of Maharashtra and Others11.
9. In support of her contention that non-placement of retraction statement vitiates the order of detention, she relied upon the decisions of the Apex Court in the case of State of U.P. v. Kamal Kishore Saini12, Ayya alias Ayub v. State of U.P. and Another13 and A. Sowkath Ali v. Union of India and Others14. On the point of non-application of mind by the Detaining Authority, she relied upon a decision of the Apex Court in the case of Bannalal Vahilda Chavla v. Union of India and Others 15. In support of the ground of non-consideration by the Detaining Authority of the seizure of the passport, apart from the decision of the Apex Court in the case of Gimik Piotr (supra), she relied upon a decision of the Division Bench of this Court in the case of Smt. Nafisa Syed Ali v. The State of Maharashtra and Others16. About non-placement of the order granting bail before the Detaining Authority, she relied upon a decision of the Apex Court in the case of Rushikesh Tanaji Bhoite v. State of 9 1985(1) Scale 964 10 1999 Cri. LJ 434 11 2001 Cri. L J 3197 12 AIR 1988 SC 208 13 AIR 1989 SC 364 14 JT 2000(8) SC 385 15 (1999) 6 SCC 210 16 In Criminal Writ Petition No.1809 of 2012 decided on 16th October 2012 ::: Downloaded on - 27/01/2014 23:11:33 ::: ash 10 wp-3436n3499.13(cri) Maharashtra and Others17 and the judgment and order passed by the Division Bench of this Court in the case of Rajesh Ashok Chaudhary v.
The State of Maharashtra and Others18.
10. The learned APP appearing for the Detaining Authority and the learned counsel appearing for the Sponsoring Authority have supported the impugned orders. Their contention is that the prejudicial conduct of Sandeep and Jayant on the basis of which the order of preventive detention has been passed consists of several grounds which are distinct and separate. This contention is based on Section 5A of the COFEPOSA Act. Their contention is that even assuming that some of the contentions raised by the learned counsel appearing for the Petitioners deserve to be upheld, the impugned orders are not vitiated in view of Section 5A of the COFEPOSA Act. Reliance was placed by the learned counsel on various decisions of the Apex Court and especially the judgment of the Constitution Bench of the Apex Court in the case of State of Gujarat v. Chamanlal Manjibhai Soni19. The learned counsel appearing for the Sponsoring Authority and the learned APP dealt with every ground urged by the learned counsel appearing for the Petitioners by relying upon various decisions of the Apex Court and this Court.
17 2012 Cri.LJ 1334 18 In Criminal Writ Petition No.2562 of 2013 decided on 5th September 2013 19 AIR 1981 SC 1480 ::: Downloaded on - 27/01/2014 23:11:33 ::: ash 11 wp-3436n3499.13(cri)
11. Learned counsel appearing for the Petitioners by way of rejoinder submitted that the grounds referred to in Section 5A of the COFEPOSA Act are the distinct grounds under Sub-section (1) of Section 3 of the COFEPOSA Act on the basis of which the orders of preventive detention can be passed and by no stretch of imagination, in the cases in hand, there is more than one ground. She urged that the orders of detention in both the cases have been passed only under the ground in clause (ii) of Sub-section (1) of Section 3 of the COFEPOSA Act i.e. with a view to prevent the detenu from abetting smuggling activities in future. What is set out in the different paragraphs of the grounds supplied to the detenu in support of the order of detention cannot be the separate grounds referred to in Section 5A of the COFEPOSA Act. She, therefore, submitted that Section 5A of the COFEPOSA Act will have no application in the facts of the cases.
12. We have carefully considered the submissions. Section 3 of the COFEPOSA Act reads thus:
"3. Power to make orders detaining certain persons.
(1) The Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary ::: Downloaded on - 27/01/2014 23:11:33 ::: ash 12 wp-3436n3499.13(cri) to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from-
(i) smuggling goods, or
(ii) abetting the smuggling of goods, or
(iii) engaging in transporting or concealing or keeping smuggled ig goods, or
(iv) dealing in, smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or
(v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods, It is necessary so to do, make an order directing that such person be detained.
(2) When any order of detention is made by a State Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order.
(3) For the purposes of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days, from the date of detention".::: Downloaded on - 27/01/2014 23:11:33 :::
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13. Perusal of the impugned orders of detention show that the same have been passed on the ground (ii) above in Sub-Section (1).
14. As far as Criminal Writ Petition No.3499 of 2013 is concerned, the allegations against the detenu Sandeep have been summarized in Ground No.35 of the order of detention which reads thus:
"35. You are the kingpin of the syndicate indulging in smuggling of gold bars/gold jewelry from Dubai. You had entered into a conspiracy with Jayant Mehta, Sagar Mahendra Chheda, Mandip Futermal Mehta, Pravin Popatlal Jain, Murarilal Meena and Uday Singh Meena for smuggling gold jewelry and gold bars from Dubai. You were the financer of the smuggling activities and had admittedly invested Rs.60 lakhs and had sent the same through illegal channel. You had visited Dubai and had purchased gold for carrying the same through his carriers. You had also smuggled gold at the behest of Chirag Shah, ownr of Bafleh Jewelers, based in Dubai. You along with the CISF officers ahd chalked out a plan to smuggle the contraband by exchanging the bag containing contraband carried by the carriers from Dubai with the identical bag, carried by the CISF officer, who then used to clear the contraband through the airport area misusing his official position and without payment of customs duty. In July 2011 though this syndicate came under the scanner of DRI and Jayant Mehta who used to carry contraband on behalf of you was apprehended but nothing incriminating could be recovered from him as he had already exchanged the bag with CISF officer who had cleared the same through staff gate. Despite this you continued your smuggling activities. Admittedly you had smuggled around 120 to 140 kgs of gold bars/gold jewellery since last six months i.e. since February 2012. You are the main link between the suppliers based in Dubai and the domestic market ::: Downloaded on - 27/01/2014 23:11:33 ::: ash 14 wp-3436n3499.13(cri) and owing to your past conduct, rise in gold price and profits generated in the smuggling of gold there is every propensity that you would continue indulging in smuggling of gold."
15. As far as Criminal Writ Petition No.3436 of 2013 is concerned, the allegations against the detenu Jayant Rikhabchand Mehta have been summarized in Ground No.33 of the order of detention which reads thus:
"33. You were a leading member of the syndicate indulging in smuggling of gold bars and gold jewellery from Dubai. You had been indulging in the smuggling activities since April 2011. Initially, you used to accompany Sandeep Jain to Dubai for purchase of gold and while returning back you used to carry the contraband in your hand bag. After landing at the CSI Airport, you used to exchange the said bag with the identical bag carried by the CISF officer in an airport toilet situated before customs check point. After exchanging the bag you used to walk through the green channel. In the month of July 2011, you were apprehended by the DRI officers at customs checkpoint at Mumbai airport, however nothing could be recovered from you as you had already exchanged the bag containing contraband with the CISF officer, who in turn had carried out the bag containing contraband from the airport building misusing his official position. After the said incident, though you refused to carry the contraband to India, however you used to accompany any of the carrier to Dubai for purchasing/collecting the gold. While returning back to India you used to declare the same at the Dubai airport and thereafter before boarding the aircraft, you used to hand over the bag containing contraband to the carrier traveling to Mumbai. You used to earn about Rs.25,000/- to Rs.30,000/- per trip to Dubai from Sandeep Jain."::: Downloaded on - 27/01/2014 23:11:33 :::
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16. In the grounds of detention, reliance has been placed on large number of statements of the detenu and their co-accused recorded under Section 108 of the Customs Act, 1962.
17. One of the grounds of challenge urged in one of the Petitions is of non-consideration of an important fact regarding the seizure of passport of the detenu. The learned counsel appearing for the Petitioners has relied upon the decision of the Apex Court in the case of Gimik Piotr (supra) and the decision of this Court in the case of Smt. Nafisa Sayed Ali (supra). In both the cases, the orders of detention subject matter of challenge were passed under the first ground (with a view to prevent the detenu from indulging in any smuggling activities) set out in Sub-section (1) of Section 3 of the COFEPOSA Act. It was held in the said decisions that as the passport was already in the custody of the Authorities, there was no possibility of the detenu travelling abroad and indulging in smuggling activities.
The said decisions will have no application to the facts of the cases in hand, as the impugned orders of detention have been passed not with a view to prevent Sandeep and Jayant from indulging in smuggling activities but with a view to prevent them from abetting smuggling activities. For abetting smuggling activities, it is not necessary for the detenu to travel abroad. Therefore, this contention has no merit. The decisions relied upon by the learned counsel appearing for the ::: Downloaded on - 27/01/2014 23:11:33 ::: ash 16 wp-3436n3499.13(cri) Petitioners are in cases where the order of detention was only for preventing the detenu from indulging in smuggling activities in future.
18. Now as regards the ground of delay in passing both the orders of detention is concerned, there is an explanation offered by the Detaining Authority. It is stated that the seizure of the goods was effected on 10th/11th August 2012. We find from the grounds of detention that from 10th August 2012 onwards till 1st November 2012, statements of the accused, co-accused and others were recorded under Section 108 of the said Act of 1962. On 19 th November 2012, a proposal for detention was kept before the Screening Committee.
Perusal of the affidavits of the Detaining Authority as well as Sponsoring Authority shows that the proposal was received by the Sponsoring Authority on 23rd November 2012. On 3rd December 2012, the proposal along with documents running into 292 pages was forwarded to the Detaining Authority. The Detaining Authority directed to call for additional information by order dated 15 th December 2012.
Additional information was called for by a letter dated 19 th December 2012. The Sponsoring Authority forwarded information and further generated documents running into page nos.293 to 330 along with a letter dated 24th December 2012. The said documents were submitted by the concerned Assistant before the Detaining Authority on 1 st January 2013. The Detaining Authority directed to include further ::: Downloaded on - 27/01/2014 23:11:33 ::: ash 17 wp-3436n3499.13(cri) generated documents in relied upon documents. Further generated documents running into page Nos.331 to 784 were again forwarded by the Sponsoring Authority on 12th February 2013 which were placed before the Detaining Authority on 15 th February 2013. We must note that in the meanwhile, on 24th December 2012, 2nd January 2013 and on 11th January 2012 statements under section 108 of the said Act of 1962 of some other persons were recorded. On 18th February 2013, the Detaining Authority passed an order seeking clarification. A letter in this behalf was issued on 27th February 2013. The required information along with further generated documents from pages 785 to 795 were forwarded by the Sponsoring Authority on 4 th March 2013 which were received by the Detaining Authority on 6 th march 2013. Thereafter, the Detaining Authority after perusing the further generated documents directed that the newly forwarded documents should be included in the relied upon documents. An order was passed by the Detaining Authority on 14th June 2013 for including further generated documents running into page Nos.796 to 807. All further generated documents along with original documents were stamped and were submitted for consideration of the Detaining Authority . It is stated that the time was consumed by the Detaining Authority for better screening of the proposal and thereafter, the orders of detention were issued on 22 nd August 2013. In support of the contention based on delay, the Petitioners have relied upon the decisions of the Apex Court in the cases ::: Downloaded on - 27/01/2014 23:11:33 ::: ash 18 wp-3436n3499.13(cri) of Issac Babu (supra) and Adishwar Jain (supra). They have also relied upon the decision of the Apex Court in the case of Saeed Zakir Hussain Malik (supra). On the aspect of delay, it will be necessary to make a reference to Paragraphs 27 and 28 of the decision of the Apex Court in the case of Saeed Zakir Hussain Malik (supra), which read thus:
"27. As regards the second contention, as rightly pointed out by 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 scrutinize 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 casual connection has been broken in the circumstance of each case. We are satisfied that in the absence of proper explanation for a period of 15 months in issuing the order of detention, the same has to be set aside. Since, we are in agreement with the contentions relating to delay in passing the Detention Order and serving the same on ::: Downloaded on - 27/01/2014 23:11:33 ::: ash 19 wp-3436n3499.13(cri) detenu, there is no need to go into the factual details".
(emphasis added)
19. Thus, the law is that the delay by itself is not fatal. When there is undue and long delay between the prejudicial activities and passing of order of detention, it is incumbent on the part of the Court to scrutinize whether the Detaining Authority has satisfactorily examined such a delay and has afforded reasonable and acceptable explanation as to why such delay has occasioned. We find from the list of relied upon documents supplied to the detenu along with grounds of detention that the last relied upon statement under Section 108 of the Customs Act, 1962 was recorded on 11th January 2013. From time to time, additional generated documents were placed before the Detaining Authority. The total generated documents were running into 807 pages. Considering the nature of prejudicial activities alleged and the propensity of the detenu in both the cases in hand, it is not possible to conclude that the live-link was snapped due to time gap between the date of the alleged prejudicial activities and the orders of detention.
In Criminal Writ Petition No.3499 of 2013, it is alleged that the detenu Sandeep Jayantilal Jain is the kingpin of the syndicate indulging in smuggling of gold bars and gold jewellery from Dubai. It is alleged that during the period of six months since February 2012, the detenu Sandeep Jain had smuggled about 120 to 140 kgs of gold bars and gold jewellery. Even before 11th July 2012 on three to four occasions, he ::: Downloaded on - 27/01/2014 23:11:33 ::: ash 20 wp-3436n3499.13(cri) smuggled gold. The subjective satisfaction has been recorded that owing to his past conduct, rise in gold price and profits generated in the smuggling of gold, there is every propensity that the detenu will continue indulging in the activity of smuggling of gold which he has been carrying on in an organized manner. As regards the detenu Jayant Rikhabchand Mehta in Criminal Writ Petition No.3436 of 2013 is concerned, the allegation against him is that he has been a leading member of syndicate indulging in smuggling of gold bars and gold jewellery from Dubai of which the kingpin is Sandeep Jain, who is a detenu in other Petition. It is alleged that even after he was apprehended in July 2011 in Mumbai, he continued to accompany the carrier to Dubai for purchasing the gold bars and gold jewellery. He used to earn Rs.25,000/- to Rs.30,000/- per trip from Dubai from the detenu Sandeep Jain. Therefore, it is not possible to accept that the live link was snapped due to delay. Moreover, in the reply, the Detaining Authority has explained the delay. Therefore, we are unable to accept the submission that the impugned order is vitiated on the ground of delay in passing the order of detention.
20. Another ground urged by the learned counsel appearing for the Petitioner is that in the grounds of detention, the Detaining Authority has referred to the show cause notice dated 8 th February 2013 but reply filed by Sandeep to the said show cause notice was not placed ::: Downloaded on - 27/01/2014 23:11:33 ::: ash 21 wp-3436n3499.13(cri) before the Detaining Authority which was a vital document. On this aspect, the learned counsel appearing for the Petitioner relied upon a decision of the Apex Court in the case of Kurjibhai Dhanjibhai Patel (supra) and other decisions. In the facts of those cases, the reply filed by the detenu himself was not placed before the Detaining Authority.
In Criminal Writ Petition No.3436 of 2013, there was no reply submitted by the detenu. In Criminal Writ Petition No.3499 of 2013, there was a reply issued by the detenu Sandeep and the said reply was not placed before the Detaining Authority. It will be necessary to make a reference to the decision of the Apex Court in the case of M.L. Jose v.
Union of India and Others20. In Paragraph 10 of the said decision, the Apex Court held thus:
"10. The second submission has been based on the ground that the reply to the show-cause notice dated September 13, 1990 made by his wife (against whom also a detention order has been passed) has not been placed before the detaining authority. According to the learned counsel, had this document been placed before the detaining authority, probably it might have influenced the mind of the detaining authority one way or other in reaching the subjective satisfaction. This submission is answered by the respondent stating that the reply to thereafter show-cause notice is one and the same as that of the retraction statement dated May 31, 1990 of the detenu's wife and that inasmuch as that retraction statement has been considered by the detaining authority before passing the detention order, the reply to the show- cause notice even if placed might not have in any way influenced the mind of the detaining authority. Be that as it may, we after scrupolously going 20 1992 SCC (Cri) 661 ::: Downloaded on - 27/01/2014 23:11:33 ::: ash 22 wp-3436n3499.13(cri) through the entire records are satisfied that the detaining authority has neither relied upon nor even referred to the reply to the show-cause notice. So the second submission of the learned counsel has no force. Learned counsel in support of this submission relied upon a decision in Kurjibhai Dhanjibhai Patel v. State of Gujarat. In our view, the said decision cannot be availed of because the facts therein are entirely different. In that case, the show-cause notice and the reply to the said notice sent by the detenu himself, which according to the Court were vital documents, have not been placed before the detaining authority. For the reason stated above, the second contention has to be repelled."
(emphasis supplied)
21. We have perused the reply dated 26 th July 2013 sent by Sandeep to the show cause notice. It is a reply addressed to the Adjudicating Authority under the said Act of 1962. There is a bald denial of allegations in the show cause notice. The denial is based on his retraction statement. We have held in the subsequent part of this judgment that non placement of retraction of Sandeep will not vitiate the impugned orders. Only other contention in the reply of Sandeep to the show cause notice is that he may be permitted to cross examine certain witnesses. Such an innocuous reply could not have affected the subjective satisfaction of the Detaining Authority either way. In the facts of these two cases, the reply was not at all a vital document. Hence, even if the reply filed by the detenu himself is not placed before the Detaining Authority, the subjective satisfaction of the Detaining Authority is not vitiated. The decisions relied upon by the Petitioners ::: Downloaded on - 27/01/2014 23:11:33 ::: ash 23 wp-3436n3499.13(cri) will have no application to the facts of these two cases in hand as in the facts of those cases it was found that the reply was a vital document.
22. Another contention is regarding failure on the part of the Sponsoring Authority to place before the Detaining Authority retraction of the statements under Section 108 of the Customs Act, 1962 of the Sandeep. The Detaining Authority has relied upon the statements under Section 108 of the Customs Act, 1962 of Jayant and thirteen other persons. There is no retraction of these statements. The Detaining Authority has set out in the grounds the contents of these statements which were not retracted. They give a vivid account of the active participation of Sandeep and Jayant in the smuggling of gold for considerably long time. The learned counsel appearing for the Petitioners has placed reliance on the decisions of the Apex Court in the case of K. Satyanarayan Subudhi v. Union of India and Others 21, Kamal Kishore Saini (supra), Ayya alias Ayub (supra), A. Sowkath Ali (supra).
She also relied upon a decision of this Court in the case of Mr. R. Swaminathan v. Shri G.S. Sandhu & Others 22 which holds that non-
placement of retraction of the statements recorded under Section 108 of the Customs Act, 1962 vitiates the order of detention. On this aspect, it will be necessary to make a reference to the decision of the Apex Court in the case of Madan Lal Anand v. Union of India & Others 23. In 21 1991 Supp(2) SCC 153 22 2001 ALL MR (Cri) 553 23 (1990) 1 SCC 81 ::: Downloaded on - 27/01/2014 23:11:33 ::: ash 24 wp-3436n3499.13(cri) Paragraph 29, the Apex Court held thus:
"29. In the instant case, even assuming that the ground relating to the confessional statement made by the detenu under Section 108 of the Customs Act was an inadmissible ground as the subsequent retraction of the confessional statement was not considered by the detaining authority, still then that would not make the detention order bad, for in the view of this Court, such order of detention shall be deemed to have been made separately on each of such grounds. Therefore, even excluding the inadmissible ground, the order of detention can be justified. The High Court has also overruled the contention of the detenu in this regard and, in our opinion, rightly."
23. Prior to that, a Larger Bench of the Apex Court in the case of Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala and Others24 dealt with the said issue. Paragraphs 75 to 78 of the said decision read thus:
"75. In the instant case, the ground of detention is the satisfaction of the detaining authority that with a view to preventing the detenu from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing the detenu from, inter alia, dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping the smuggled goods, or engaging in transporting or concealing or keeping smuggled goods the detention of the detenu is necessary. This satisfaction was arrived at as inferences from several factors. These have been separately mentioned. One of them is the
24 1985 SCC (CR) 332 ::: Downloaded on - 27/01/2014 23:11:33 ::: ash 25 wp-3436n3499.13(cri) contention but this ground was taken into consideration without taking note of the retraction made thereafter. But the inference of the satisfaction was drawn from several factors which have been enumerated before. We have to examine whether even if the facts stated in the confession are completely ignored, then too the inferences can still be drawn from other independent and objective facts mentioned in this case, namely, the fact of seizure after search of 60 gold biscuits from the suitcase of the daughter in the presence of the father which indubitably belonged to the father and admitted by him to belong to him for which no explanation has been given and secondly the seizure of the papers connected with other groups and organisations. Pratap Sait and others to whom gold has been sold by the father are relevant grounds from which an inference can reasonably be drawn for the satisfaction of the detaining authority for detaining the detenus for the purpose of Section 3(1)(iii) and 3(1)(iv). We are of the opinion that the impugned order cannot be challenged merely by the rejection of the inference drawn from confession. The same argument was presented in a little different shade, namely, the fact of retraction should have been considered by the detaining authority and the Court does not know that had that been taken into consideration, what conclusion the detaining authority would have arrived at. This contention cannot be accepted. We are not concerned with the sufficiency of the grounds. We are concerned whether there are relevant materials on which a reasonable belief or conviction could have been entertained by the detaining authority on the grounds mentioned in Section 3(1) of the said Act.
Whether other grounds should have been taken into consideration or not is not relevant at the stage of the passing of the detention order. This contention, therefore, cannot be accepted. If that is the position ::: Downloaded on - 27/01/2014 23:11:33 ::: ash 26 wp-3436n3499.13(cri) then in view of Section 5-A of the Act there was sufficient material to sustain this ground of detention.
76. In the case of State of Gujarat v. Chamanlal Manjibhai Soni7 this Court maintained the order of the High Court quashing the detention. This Court observed that detention under Section 3 of the Act was only for the purpose of preventing smuggling and all the grounds, whether there are one or more, would be relatable only to various activities of smuggling and no other separate ground which could deal with matters other than smuggling could be conceived of because the act of smuggling covered several activities each forming a separate ground of detention and the Act dealt with no other act except smuggling. Whenever allegations of smuggling were made against a person who was sought to be detained for preventing further smuggling there is bound to be one act or several acts with the common object of smuggling goods which was sought to be prevented by the Act. It would, therefore, not be correct to say that the object of the Act constituted the ground for detention. This view is respectfully reiterated but in the instant case, the authorities concerned came to the conclusion that the detenus were engaged in smuggling, in support of the same they relied on several factors, namely:
(1) The search and seizure at room No. 316 at Dwaraka Hotel and recovery of 60 gold biscuits.
(2) The fact that the importation of the 60 gold biscuits could not be explained by the detenu Venilal.
(3) The secretive manner in which the said gold biscuits were kept.
::: Downloaded on - 27/01/2014 23:11:33 :::ash 27 wp-3436n3499.13(cri) (4) The connection with the various dealers as mentioned hereinbefore and the statements of the employees of the dealers that the father and the sons used to come with gold bars.
77. These materials were in addition to the statements and confessions made under Section 108 of the Customs Act by the father, the sons and the daughter. So even if the statements made under Section 108 by the father, the sons and the daughter are ignored and obliterated, the other facts remain and these are materials good enough to come to the prima facie belief that detention of the detenus was necessary.
78. Reliance was placed in the case of Ashadevi v.
K. Shiveraj, Addl. Chief Secretary to the Government of Gujarat8. There a detention order under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 was passed by the respondent against the detenu with a view to prevent him from engaging in transporting smuggled gold. When the detenu was in the custody of the Customs Officers, his advocate addressed a letter and sent a telegram to them protesting against his detention and illegal custody beyond 24 hours and also expressing an apprehension that he was being detained with a view to obtain confessional statements under duress. It was admitted that the advocate's request for permission to remain present at the time of interrogation of the detenu was turned down by the Customs Officers. The advocate was also told that the detenu would be produced before a Magistrate on the day requested but that was not done. He was produced on the following day and was remanded to judicial custody permitting further interrogation. While in judicial custody, the detenu refused to sign the further statements and squarely resiled. While ::: Downloaded on - 27/01/2014 23:11:33 ::: ash 28 wp-3436n3499.13(cri) the detenu's application for bail was pending before the Magistrate, the respondent passed the impugned order. In petition under Article 226 of the Constitution for the issue of a writ of habeas corpus, the appellant contended that the order of the detaining authority was liable to be set aside because full facts of the case were not intimated before the detention order was passed, and, therefore, there was complete non-application of mind of the detaining authority to the attendant vital circumstances. It was held that the impugned order was invalid and illegal because there was complete non-application of the mind of the detaining authority to the most material ig and vital facts. In the instant case before us, there was no request for consultation with the advocate. There is no case of non-production in spite of intimation by the advocate to the Customs Officers before a Magistrate. The confessional statements, of course, were retracted. But in this case the confessional statement was not the only fact upon which the detaining authority had passed an order. In the premises even if the confessional statements which were retracted as such could not be taken into consideration, there are other facts independent of the confessional statement as mentioned hereinbefore which can reasonably lead to the satisfaction that the authorities have come to."
(emphasis added)
24. Coming back to the facts of the cases in hand, perusal of the grounds of detention shows that the statements recorded under Section 108 of the Customs Act, 1962 of Sandeep which were retracted is not the only material considered. We have already noted that the Detaining Authority has also relied upon the statements under Section 108 of the Customs Act, 1962 of said Jayant and thirteen other ::: Downloaded on - 27/01/2014 23:11:33 ::: ash 29 wp-3436n3499.13(cri) persons. There is no retraction of these statements. The Detaining Authority has set out in the grounds the contents of these statements which were not retracted. They give a vivid account of the active participation of Sandeep and Jayant in the smuggling of gold for considerably long time. There is a seizure of a bag containing 5.804 kg of jewellery and gold bars which were made on 10th/11 th August 2012. Hence, sufficiency of material before the Detaining Authority cannot be disputed. Therefore, in the facts of the cases in hand, the orders of detention are not vitiated on account of non-placement of retraction of statements of Sandeep.
25. The learned counsel appearing for the Petitioners contended that there is a variance in the subjective satisfaction of the Detaining Authority recorded in the impugned orders and the grounds of detention. In the grounds of detention, a satisfaction has been recorded of necessity of passing order even under the other clauses of Sub-
Section 1 of Section 3 of COFFEPOSA Act. But, in the case of Sandeep, in paragraph 35 of the grounds of detention,there is also a satisfaction recorded about the necessity of passing an order of Detention under clause (ii) (for abetting smuggling of gold). In case of Jayant, we have reproduced paragraph 33 of the grounds. What is stated therein shows that the Detaining Authority was satisfied that Jayant has abetted smuggling activities of which the kingpin was Sandeep. After having ::: Downloaded on - 27/01/2014 23:11:33 ::: ash 30 wp-3436n3499.13(cri) perused the grounds of detention and the orders of detention, we find that there is no such variance which will vitiate the orders of Detention.
26. Another submission was canvassed in the case of Sandeep that though the Detaining Authority has stated that he was released on bail, the order granting bail was not placed before the Detaining Authority. In the case in hand, the order of detention has been passed one year after he was released on bail. Moreover, the order is under clause (ii) of Sub-Section 1 of Section 3. Therefore, in the facts of the case in hand, the order of detention is not vitiated on the ground of the failure to place the order granting bail before the Detaining Authority.
27. Hence, we find that no case for interference is made out in writ jurisdiction. The Writ Petitions are rejected. The Rule in both the Petitions is discharged. No costs.
( S.C. GUPTE, J ) ( A.S. OKA, J )
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