Bombay High Court
Sangita Bala Jadhav vs The State Of Maharashtra on 8 November, 2011
Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar, P. D. Kode
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vgm
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 2332 OF 2011
Sangita Bala Jadhav ]
Age 36 years, an Indian inhabitant, ]
Residing at A/202, Shiv Shristhi Building, ]
Plot No. 3, Section 7, New Panvel, ]
Navi Mumbai ] ...Petitioner
(Wife of Detenu)
V/s.
1. The State of Maharashtra ]
through the Secretary to the Government ]
of Maharashtra, Home Department (Special), ]
Mantralaya, Mumbai 400 032 ]
2. Medha Gadgil, ]
the Principal Secretary (Appeals and Security) to ]
the Government of Maharashtra, ]
Home Department and Detaining Authority, ]
Mantralaya, Mumbai 400 032 ]
3. Senior Police Inspector, ]
P.C.B., C.I.D., Shivaji Market, Mumbai. ]
4. The Superintendent of Prison, ]
Nashik Road Central Prison, Nashik Road, ]
Nashik ]
5. The Customs Officers of JNPT, ]
Nhava Sheva, Uran, Dist. Raigad. ] ...Respondents
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WITH
CRIMINAL WRIT PETITION NO. 2333 OF 2011
Vikram Vithal Borhade ]
Age 30 years, an Indian Inhabitant, Residing at ]
402, A Wing, Shridha Co-op. Hsg. Society, ]
Kala Chowki, Lal Baug, Mumbai-33. ] ...Petitioner
V/s.
1. The State of Maharashtra ]
through the Secretary to the Government of ]
Maharashtra, Home Department (Special),
ig ]
Mantralaya, Mumbai 400 032 ]
2. Medha Gadgil, ]
the Principal Secretary (Appeals and Security) ]
to the Government of Maharashtra, ]
Home Department and Detaining Authority, ]
Mantralaya, Mumbai 400 032 ]
3. Senior Police Inspector, ]
P.C.B., C.I.D., Shivaji Market, Mumbai ]
4. The Superintendent of Prison, ]
Nashik Road Central Prison, Nashik Road, ]
Nashik ]
5. The Customs Officers of JNPT, ]
Nhava Sheva, Uran, Dist. Raigad. ] ...Respondents
AND
CRIMINAL WRIT PETITION NO. 2683 OF 2011
Vimal Ashok Dhakne ]
Age 45 years, an Indian inhabitant, residing ]
at 401, Runwal Residency, 4th Floor, ]
Avenue Road, Post Office Park, Chembur (East), ]
Mumbai 400 071 ] ...Petitioner
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V/s.
The State of Maharashtra ]
through the Secretary to the Government of ]
Maharashtra, Home Department (Special), ]
Mantralaya, Mumbai 400 032 ]
2. Medha Gadgil, ]
the Principal Secretary (Appeals and Security) to ]
the Government of Maharashtra, ]
Home Department and Detaining Authority, ]
Mantralaya, Mumbai 400 032 ]
3. The Superintendent of Prison,
ig ]
Nashik Road Central Prison, Nashik Road, ]
Nashik ]
4. The Customs Officers of JNPT, ]
Nhava Sheva, Uran, Dist. Raigad. ] ...Respondents
Mrs. Aisha Zubair Ansari with Ms. Nasreen Ayubi for the Petitioners
Mr. J.P. Yagnik, A.P.P., for the State
CORAM: A.M. KHANWILKAR AND
P.D. KODE, JJ
DATE: NOVEMBER 08, 2011.
JUDGMENT (PER A.M. KHANWILKAR, J.):-
By this common judgment, we intend to finally dispose of all three petitions challenging the Orders of Detention together, as the background in which the respective Detention Orders were issued against the concerned detenues is common and arising out of the same ::: Downloaded on - 09/06/2013 17:54:04 ::: 4 233211 transaction and more so, the issues raised are overlapping. In other words, the facts and events as disclosed in the respective petitions as also the reply-affidavits and the original record of the respondents, i.e., the Sponsoring Authority and the Detaining Authority are broadly identical.
2. The first petition is filed by the wife of Bala Baburao Jadhav (hereinafter referred to as Detenu Jadhav), challenging the Order of Detention dated 20th July, 2011 bearing No. PSA-1211/CR-17(4)/SPL-3(A) issued by the Detaining Authority in exercise of powers under Section 3(1) of the Conservation of of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "the said Act"), upon recording satisfaction that it was essential to detain the detenu with a view to prevent him in future from smuggling of goods and abetting smuggling of goods and engaging in transporting and concealing and keeping smuggled goods and harbouring persons engaged in smugging of goods and abetting smuggling of goods. From the Grounds of Detention served on the said detenu, it is noticed that the said action was initiated against the said detenu, as he was involved along with four others in the case of gross misdeclaration with respect to quantity, quality and valuation of ::: Downloaded on - 09/06/2013 17:54:04 ::: 5 233211 the declared export goods, besides claim of disproportionately higher amount of drawback. The Grounds of Detention refer to the statements of the accused recorded under Section 108 of the Customs Act, 1962, including the admission of the detenu that he had filed the wrong declaration on the shipping bills and had not obtained the permission of proper officer for making amendments. Further, the co-accused, Sanjay Waghmare, in his statement, admitted that he had removed the export goods from the warehouse through his associate for export. It also refers to the sealed samples (28 in number) of the goods covered under the eight shipping bills drawn under panchanama, which were forwarded to the Textile Laboratory and Research Centre, Mumbai, for testing the composition and criteria of the said items; as also to Government-approved valuer for valuation. The goods totally valued at Rs.3,67,98,880 (F.O.B.) with drawback claim of Rs.34,20,030/-. As per the valuation report, the value was determined at Rs.10/- per piece of Dupatta and Rs.20/- per piece of Sarong as compared to the declared value of Rs. 351.34 and Rs. 280.78 of the respective items, which were considerably very low. Detenu Jadhav was involved in the said offence as an employee of Clearing House Agency firm of M/s. Dhakne & Co.
The Grounds of Detention state that Detenu Jadhav abetted in smuggling activities by improper export and claiming drawback ::: Downloaded on - 09/06/2013 17:54:04 ::: 6 233211 fraudulently by offering Clearing House Agency services to the exporters. He prepared and signed the shipping bills and related documents for exports of M/s. Noble Impex and completed custom dock formalities without scrutinising the export documents. He submitted blank annexure / declaration to generate the checklist. There was difference in signature on the invoices and alterations, i.e., gross weight, net weight, description of the goods, quantity of the goods, market value and different dates on the declaration. He submitted overwritten / correct customs cleared documents at EDI Centre, Kalamboli, without proper permission of the Customs. In his statement under Section 108 of the Customs Act, he admitted misdeclaration in description, quantity, quality, valuation of the export goods and claiming drawback fraudulently by the exporter. In the Grounds of Detention, it is stated that Detenu Jadhav has the propensity to commit similar offences in future and knowingly was not disclosing the identities of the persons involved in smuggling. Further, considering the nature and gravity of the offence and the well-organised manner in which the prejudicial activities were being carried out, the Detaining Authority recorded her satisfaction that it was imperative to detain Detenu Jadhav with a view to prevent him from indulging in smuggling ::: Downloaded on - 09/06/2013 17:54:04 ::: 7 233211 activities in future as his smuggling activities were covered by Section 113(d) and (h) (ii) of the Customs Act, 1962.
3. The second petition is filed by the cousin brother of one Sanjay Nivrutti Waghmare (hereinafter referred to as "Detenu Waghmare") to challenge the Detention Order dated 20th July, 2011 bearing No. PSA-1211/CR-17(5)/SPL-3(A) issued by the Detaining Authority in exercise of powers under Section 3(1) of the said Act, upon being satisfied that detention of Detenu Waghmare was essential to prevent him in future from smuggling of goods and abetting smuggling and engaging in transporting and concealing and keeping smuggled goods and harbouring persons engaged in smugging of goods and abetting smuggling of goods. As aforesaid, the Detention Order against Detenu Waghmare has been passed in connection with the same transaction referred to in the Grounds of Detention of Detenu Jadhav regarding smuggling of goods of gross misdeclaration with respect to quality, quantity and valuation of the declared export goods and claim of disproportionately higher amount of drawback regarding the export consignment of M/s. Noble Impex under eight shipping bills.
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4. In the Grounds of Detention served on Detenu Waghmare, it is stated that he was part of a larger conspiracy and entered into conspiracy to earn money by improper export and claiming drawback fraudulently. He went to Surat to solicit probable exporter and discussed the export strategy with exporter. He fixed Rs.10,000/- per container as his charges and helped the exporter to get I.E.C. Code. He also arranged transport for the export of goods from Surat to Mumbai, kept the goods at warehouse at Mumbai, removed and transported export goods to shed. He introduced the exporter to Clearing House Agent M/s. Dhakne & Co. and booked the container for the export goods from M/s. Freight Services, Mumbai. It is further stated that Detenu Waghmare removed export goods from warehouse through his associate, arranged transport and transported the export goods to shed, thereby aided and abetted improper export for claiming higher drawback fraudulently in violation of the provisions of Section 113(d) and (h) (ii) of the Customs Act. It is stated that Detenu Waghmare, along with four other co-accused, were actively involved in the attempted improper export and claimed higher disproportionate amount of drawbacks fraudulently, thereby indulging and abetting in smuggling activities. He has the propensity to commit such offences in future and knowingly was not disclosing the identities of the persons involved in ::: Downloaded on - 09/06/2013 17:54:04 ::: 9 233211 the smuggling, as they are actively involved in the aforesaid illegal activities. It is stated that, considering the nature and gravity of the offence and the well-organised manner in which Detenu Waghmare had engaged in prejudicial activities, it was imperative to detain him with a view to prevent him from indulging in smuggling activities in future.
5. The third petition is filed by the wife of one Ashok Pandurang Dhakne (hereinafter referred to as "Detenu Dhakne"), challenging the Detention Order dated 20th July, 2011 bearing No. PSA-1211/CR-17(3)/SPL-3(A) issued by the Detaining Authority in exercise of powers under Section 3(1) of the said Act, directing detention of Detenu Dhakne to prevent him in future from smuggling of goods, abetting smuggling of goods and engaging in transporting, concealing, keeping smuggled goods and harbouring persons engaged in smugging of goods and abetting smuggling of goods.
6. Even in the third petition, the impugned Detention Order is founded on the same transaction pertaining to export consignment of M/s. Noble Impex under eight shipping bills which came under scanner because of gross misdeclaration with respect to quantity, quality and valuation of the declared export goods and claim of disproportionately ::: Downloaded on - 09/06/2013 17:54:04 ::: 10 233211 higher amount of drawback. After referring to the relevant admission given by the co-accused, it is noticed that Detenu Dhakne was partner of the concerned Clearing House Agency, i.e., M/s. Dhakne & Co. The Grounds of Detention stated that Detenu Dhakne abetted the improper exports and claiming drawback fraudulently by offering his C.H.A. services to the exporters. He was shown the sample of export goods.
He instructed his staff to prepare the shipping bills and related documents for exports. He had given instructions to Detenu Jadhav to prepare, file the shipping bills and complete Customs dock formalities.
He confirmed the name of Bala Jadhav on shipping bills of M/s. Noble Impex on behalf of C.H.A. Firm, M/s. Dhakne & Co. He admitted to have offered his C.H.A. service without verifying quality and quantity of the samples of the items to be exported. He has also admitted having given the blank annexure/declaration to his employee, Detenu Jadhav. Detenu Dhakne also confirmed the different signatures on the invoices and admitted misdeclaration in description, quantity, quality, valuation of the export goods and claiming drawback fraudulently by the exporter. The Detaining Authority, in the Grounds of Detention, has noted that the four accused were actively involved in the attempted improper export and claiming higher disproportionate amount of drawback, thereby indulging and abetting in smuggling activities.
::: Downloaded on - 09/06/2013 17:54:04 :::11 233211 They all have the propensity to commit prejudicial activities in future and knowingly not disclosing the identities of the persons involved in smuggling, as they were actively involved in the stated illegal activities. It is noted that the acts of commission and omission of the detenu contravened the provision of Section 113(d) and (h)(ii) of the Customs Act. Further, considering the nature and gravity of the offence and the well-organised manner in which Detenu Dhakne had engaged in prejudicial activities, it was imperative to detain him under the said Act with a view to prevent him from indulging in smuggling activities in future.
7. In the respective petitions, although diverse grounds have been taken, at the time of hearing of the petitions the counsel for the petitioners, in all fairness stated that most of the contentions were common to all the three petitions. We shall at the appropriate stage indicate the additional contention taken in respect of the two connected petitions of Detenues Waghmare and Dhakne, specific to those cases.
8. The first set of common grounds urged in all the three petitions can be summarised as follows:-
Firstly, that there has been delay in initiating the proposal for detention of the respective detenues; secondly, that the Detention Orders could not have been issued in the fact situation of the case as ::: Downloaded on - 09/06/2013 17:54:04 ::: 12 233211 the detenues had not indulged in similar prejudicial activities after being released on bail in connection with the transaction in question;
and, thirdly, that the Detaining Authority has failed to consider whether any other measure was possible, instead of issuing Orders of Detention.
However, at the time of hearing, the learned counsel fairly submitted that she may not pursue the above noted grounds in view of the recent decision rendered by us in the case of Shamsher Singh S/o. Balwinder Singh v. the State of Maharashtra & Ors., Criminal Writ Petition No. 2188 of 2011 decided on 11th October, 2011. Incidentally, in that case also, the counsel for the petitioners herein had appeared for the detenu and unsuccessfully pursued these very grounds. She fairly accepts that the principle enunciated in the said decision in relation to the abovesaid grounds would squarely apply and it may not be possible for her to distinguish the same.
9. That leaves us with the other three broad common points urged by the learned counsel for the petitioners. According to the petitioners, the impugned Detention Orders suffer from the vice of non-application of mind. In that, the Detaining Authority, after receipt of the proposal, proceeded to pass order within one day. The argument proceeds that it was impossible for the Detaining Authority to wade through all the four proposals examined together in one day and also formulate grounds ::: Downloaded on - 09/06/2013 17:54:04 ::: 13 233211 therefor. The second shade of challenge to the impugned Detention Order, as suffering from the vice of non-application of mind, is that, there is variance in the alleged activities stated by the Detaining Authority in the Order of Detention and the ones mentioned in the Grounds of Detention. The Grounds of Detention, even if read as a whole, would, at best, indicate that the satisfaction recorded is only in respect of the detenu having abetted in the commission of the offence;
and yet, the Order of Detention proceeds against the detenu also for having engaged in smuggling goods; engaged in transporting, concealing, keeping smuggled goods and harbouring persons engaged in smuggling goods. For this singular reason, the Detention Order is vitiated. The last common ground urged by the learned counsel for the petitioners is that there is unexplained and inordinate delay in deciding the representation made by the detenues, both by the Detaining Authority as well as the State Government.
10. Accordingly, we shall now turn to the challenge on the ground that the impugned Detention Orders suffer from the vice of non-application of mind. The facts relevant for deciding this contention are common in all the three cases. For the sake of convenience, we shall refer to the relevant dates mentioned in the petition filed in respect of Detenu Jadhav.
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11. According to the petitioners, the proposal was received by the Detaining Authority on 19th July, 2011 and the Detaining Authority proceeded to examine all the proposals together within one day and passed the order on 20th July, 2011, as also recorded Grounds for Detention. As regards this contention of the petitioners, the Detaining Authority, in reply-affidavit dated 13th September, 2011 in paragraph 5, has averred as follows:-
"... a proposal for preventive detention under COFEPOSA Act in case of Shri Bala Baburao Jadhav and four others was submitted by the Joint Commissioner of Customs (Preventive) Mumbai vide its letter dtd. 06.05.2011 which was received in this office on 6.5.2011. The proposal was scrutinized by the concerned Assistant and was submitted on 1.6.2011 to the Under Secretary who endorsed it on 1.6.2011 and forwarded it to Deputy Secretary. The Deputy Secretary endorsed it on 1.6.2011 and the proposal was submitted to me. I have directed to get information on certain points from Sponsoring Authority. The information was called from Sponsoring Authority vide letter dated 9.6.2011. The said information was received from the Sponsoring Authority vide letter dtd. 27.6.2011. The concerned Assistant prepared a note on 29.6.2011 and submitted it to the Under Secretary who endorsed it on 30.6.2011 and forwarded it to Deputy Secretary. The Deputy Secretary endorsed it on 2.7.2011 and the proposal was submitted to me. I endorsed it on 11.7.2011 and directed to get the documents stamped. By its letter dtd. 11.7.2011 the Sponsoring Authority forwarded the copy of Show Cause Notice, dtd. 4.7.2011 which was submitted to me and on
12.7.2011 I as the Detaining Authority directed to include it in relied upon documents. Thereafter on 19.7.2011 the stamped relied upon documents were submitted to me. I as the Detaining Authority directed to issue the detention Order by drafting the Detention Order along with the grounds of detention and also directed to submit the fair copy of the same. Accordingly the fair copy of the Detention Order and the grounds of detention was submitted to me on 20.7.2011 ::: Downloaded on - 09/06/2013 17:54:04 ::: 15 233211 and on the same day the detention order was issued against the detenu.
I as the Detaining Authority, on the material facts available on record and after my subjective satisfaction with the documentary presentation as clearly stated in the grounds of detention, communicated to the detenu. I arrived at the decision that the detenu should be detained under the provisions of the COFEPOSA Act and accordingly Detention Order was passed." (emphasis supplied)
12. On analysing the stand taken by the Detaining Authority in its proper perspective, it appears to us that the process of scrutiny of the proposals by the Detaining Authority commenced on 1st June, 2011, when the same were endorsed to her by the Deputy Secretary. She directed to get necessary information on certain points from the Sponsoring Authority. After the said information was received from the Sponsoring Authority, the proposal was scrutinised further, in the first place, by the concerned Assistant and submitted to the Under Secretary, who, in turn, made his endorsement and forwarded the same to the Deputy Secretary. The Deputy Secretary, thereafter, made his endorsement and submitted the proposal before the Detaining Authority. The proposal was, once again, scrutinised by the Detaining Authority after it was received from the Deputy Secretary on 2nd July, 2011. The fact that the Detaining Authority had made endorsement on the proposal on 11th July, 2011 and directed to get the documents ::: Downloaded on - 09/06/2013 17:54:04 ::: 16 233211 stamped pre-supposes that the Detaining Authority had once again examined the proposal after its receipt. The Detaining Authority received further documents from the Sponsoring Authority on his Show Cause Notice dated 4th July, 2011 on 12th July, 2011. The Detaining Authority directed inclusion of the said Show Cause Notice in the compilation of relied-upon documents. No doubt, the final proposal consisting of stamped relied-upon documents were received by the Detaining Authority on 19th July, 2011 and the Detention Orders and the Grounds of Detention were issued on 20th July, 2011. That, however, does not mean that only on and after 19th July, all the four proposals were examined by the Detaining Authority for the first time, that too, in one day, as is suggested by the petitioners. Moreover, it cannot be overlooked that since all the four proposals pertained to the self-same transaction, most of the relied-upon documents therein - 19 documents running into 294 pages in case of Detenu Jadhav, 20 documents running into 302 pages in the case of Detenu Waghmare and 23 documents running into 346 pages in the case of Detenu Dhakne - were bound to be overlapping, as is evident from the list of documents in the three cases before us:-
::: Downloaded on - 09/06/2013 17:54:04 ::: 17 233211 Sr.No. Cri.W.P. 2332 OF 2011 Cri.W.P. 2333 OF Cri.W.P. 2683 OF 2011 2011 1. Checklist for Export 8984595 Shipping Bill No. Shipping Bill No. dtd 26-10-10 (with Declaration, 8984595 dtd 8984595 dtd Annex-A, Invoice Details, Item 26-10-10 (with 26-10-10 (with Details etc.) Checklist, Invoice, Checklist, Invoice, Checklist for Export 8984588 Packing List) Packing List) dtd 26-10-10 (with Declaration, Shipping Bill No. Checklist for Annex-A, Invoice Details, Item 8984588 dtd Export 8984588 Details etc.) 26-10-10 (with dtd 26-10-10 (with Checklist for Export 8984570 Checklist, Invoice, Checklist, Invoice, dtd 26-10-10 (with Declaration, Packing List) Packing List) Annex-A, Invoice Details, Item Shipping Bill No. Checklist for Details etc.) 8984570 dtd Export 8984570 Checklist for Export 8984619 26-10-10(with dtd 26-10-10 (with dtd 26-10-10 (with Declaration, ig Checklist, Invoice, Checklist, Invoice, Annex-A, Invoice Details, Item Packing List) Packing List) Details etc.) Shipping Bill No. Checklist for Checklist for Export 984577 dtd 8984619 dtd Export 8984619 26-10-10 (with Declaration, 26-10-10 (with dtd 26-10-10 (with Annex-A, Invoice Details, Item Checklist, Invoice, Checklist, Invoice, Details etc.) Packing List) Packing List) Checklist for Export 8984546 Shipping Bill No. Checklist for dtd 26-10-10 (with Declaration, 8984577 dtd Export 984577 dtd Annex-A, Invoice Details, Item 26-10-10 (with 26-10-10 (with Details etc.) Checklist, Invoice, Checklist, Invoice, Checklist for Export 8984811 Packing List) Packing List) dtd 26-10-10 (with Declaration, Shipping Bill No. Checklist for Annex-A, Invoice Details, Item 8984796 dtd Export 8984796 Details etc.) 26-10-10 (with dtd 26-10-10 (with Checklist for Export 8984796 Checklist, Invoice, Checklist, Invoice, dtd 26-10-10 (with Declaration, Packing List) Packing List) Annex-A, Invoice Details, Item Shipping Bill No. Checklist for Details etc.) 8984546 dtd Export 8984546 26-10-10 (with dtd 26-10-10 (with Checklist, Invoice, Checklist, Invoice, Packing List) Packing List) Shipping Bill No. Checklist for 8984546 dtd Export 8984811 26-10-10 (with dtd 26-10-10 (with Checklist, Invoice, Checklist, Invoice, Packing List Packing List) Shipping Bill No. 8984811 dtd 26-10-10 (with Checklist, Invoice, Packing List) ::: Downloaded on - 09/06/2013 17:54:04 ::: 18 233211 2 Statement of Shri Khalil A.R.A. Letter of Freight Blank Declarations Kapadia PD No. 2 dated Systems dated signed by PD (7 24.11.10 18-02-11 Nos.) 3 Statement of Shri Khalil A.R.A. Statement of Statement dated Kapadia PD No. 2 dated 2.11.10 Shri Khalil A.R.A. 24.11.10 of Kapadia PD No. 2 Shri Khalil A.R.A. dated 24.11.10 Kapadia PD No. 2 4 Statement of S.J. Naeemuddin Statement of Statement dated PD No. 1 dated 18.11.10 Shri Khalil A.R.A. 2.11.10 of Kapadia PD No. 2 Shri Khalil A.R.A. dated 2.11.2010 Kapadia PD No. 2 5 Statement of S.J. Naeemuddin Statement of Statement dated PD No. 1 dated 02.11.10 Sh.S.J.Naeemuddin 18.11.10 of PD No. 1 dated Shri Saiyed J. ig 18.11.2010 Naeemuddin PD No. 1 6 Statement of Shri Ashok P. Statement of Statement dated Dhakane PD No. 3 dated Sh.S.J.Naeemuddin 02.11.10 of 14.03.11 PD No. 1 dated Shri Saiyed J. 02-11.2010 Naeemuddin PD No. 1 7 Statement of Shri Ashok P. Statement of PD Statement dated Dhakane PD No. 3 dated dated 03-03-2011 14.03.11 of 19.11.10 Shri Saiyed J. Naeemuddin PD No. 1 8 Statement of Shri Ashok P. Statement of Shri Statement dated Dhakane PD No. 3 dated Ashutosh Rai 15.12.10 of 02.11.10 dated 08-02-2011 Shri Bala Baburao Jadhav PD No. 4 9 Statement of PD dated Statement of Shri Statement dated 14.03.2011 Ashutosh Rai 16.11.10 of dated 11-02-2011 Shri Bala Baburao Jadhav PD No. 4 10 Statement of PD dated Statement of Statement of PD 21.02.2011 Shri Khalil A.R.A. dated 14.03.2011 Kapadia PD No. 2 dated 06-12-2010 ::: Downloaded on - 09/06/2013 17:54:04 ::: 19 233211 11 Statement of PD dated Statement of Statement of PD 15.12.2010 Shri S.J. dated 01.03.2011 Naeemudidn PD No. 1 dated 01-12-2010 12 Statement of PD dated Statement of PD Statement of PD 16.11.2010 dated 07.02.2011 dated 10.02.2011 13 Photo index of all PDs Statement of PD Statement of PD dated 28.12.2010 dated 03.12.2010 14 Government Approved Valuer Photo index of all Statement of PD Report dated 30.11.2010 PDs dated 01.12.2010 15 Textile Committee Report dated Government Statement of PD 22-12-2010 Approved Valuer dated 19.11.2010 Report dated 16 Seizure Memo dated 30.11.2010 Textile Committee Statement of PD 12.01.2011 Report dated dated 19.11.2010 22-12-2010 17 Detention Panchnama dated Seizure Memo Photo index of all 29.11.2010 dated 12.01.2011 PDs 18 Order Bail (2 copies) Detention Government Panchanama dated Approved Valuer 29.11.2010 Report dated 30.11.2010 19 Show Cause Notice, dated Order Bail Textile Committee 4.7.2011 issued u/s 124 of the (2 copies) Report dated Customs Act, 1962 22-12-2010 20 Show Cause Seizure Memo Notice, dated dated 12.01.2011 4.7.2011 issued u/s 124 of the Customs Act, 1962 21 Detention Panchanama dated 29.11.2010 22 Order Bail (2 copies) 23 Show Cause Notice u/s 124 of the Customs Act, 1962 ::: Downloaded on - 09/06/2013 17:54:04 ::: 20 233211
13. Suffice it to observe that, going by the assertions made in the reply-affidavit of the Detaining Authority, there is no reason to assume that the Detaining Authority examined the proposals only in one day, as is suggested by the petitioners. The contents of the reply-
affidavit would suggest that the scrutiny of the proposals began with the noting of the Detaining Authority after its receipt on 1st June, 2011, directing furnishing of certain information from the Sponsoring Authority, which scrutiny culminated in the order dated 20th July, 2011 and formulation of Grounds of Detention. Since more than one person was involved in hatching conspiracy and its execution pertaining to the same transaction, there was nothing wrong for the Detaining Authority to consider all the proposals together. It is, therefore, in the facts of the present case, not possible to countenance the assumption of the petitioners that the Detaining Authority scrutinised four Detention Orders as also formulated separate Grounds of Detention in four cases on the same day. In our opinion, the ground under consideration is devoid of merits.
14. That takes us to the argument that the impugned Detention Orders suffer from non-application of mind and are vitiated because the activities stated in the Orders of Detention are non-existent (not ::: Downloaded on - 09/06/2013 17:54:04 ::: 21 233211 mentioned) in the grounds of Detention. Inasmuch the Order of Detention in each of these cases refer to the activities covered by clauses (i) to (v) of sub-section (1) of Section 3 of the said Act.
However, the Grounds of Detention, at best, can be said to be ascribable to the activities covered only under clause (ii) i.e. , abetting the smuggling of goods qua Detenu Jadhav and Detenu Waghmare.
As regards Detenu Jadhav, he was the employee of C.H.A. Firm in which Detenu Dhakne was the Partner. He prepared the offending shipping bills under instructions of Detenu Dhakne. As regards Detenu Waghmare, material would indicate that he went to Surat to solicit probable exporter and discuss the export strategy with customer, for which, he was to charge fixed amount of Rs.10,000/- per container.
The acts of commission and omission of Detenu Waghmare also attract only abetting the smuggling of goods, as he was not the exporter or manufacturer of goods himself.
15. We have already adverted to the activities referred to in the Grounds of Detention by the Detaining Authority as against each of the detenues. In the case of Detenu Jadhav, the allegation is that he prepared and signed the eight shipping bills and related documents for exports of M/s. Noble Impex and completed custom dock formalities ::: Downloaded on - 09/06/2013 17:54:04 ::: 22 233211 without scrutinising the export documents. He submitted blank annexure / declaration to generate the checklist. He submitted overwritten / correct customs cleared documents at EDI Centre, Kalamboli, without proper permission of the Customs. He admitted misdeclaration in description, quantity, quality, valuation of the export goods and claiming drawback fraudulently by the exporter, thereby indulging and abetting in smuggling activities. Even in the case of Detenu Waghmare, it is noticed that he was part of a larger conspiracy and entered into conspiracy to earn money by improper export and claiming drawback fraudulently. For that, he went to Surat to solicit probable exporter and discussed the export strategy with exporter. He fixed his emoluments at Rs.10,000/- per container as his charges. He helped the exporter to get I.E.C. Code. He also arranged transport for the export of goods from Surat to Mumbai, kept the goods at warehouse at Mumbai, removed and transported export goods to shed.
He introduced the exporter to Clearing House Agent M/s. Dhakne & Co. and booked the container for the export goods from M/s. Freight Services, Mumbai. In substance, the allegation against him was of having removed export goods from warehouse through his associate, arranged transport and transported the export goods to shed, thereby ::: Downloaded on - 09/06/2013 17:54:04 ::: 23 233211 aided and abetted improper export for claiming higher drawback fraudulently, thereby indulging and abetting in smuggling activities.
16. Notably, all the detenues were working in a well-organised manner and by their acts of commission and omission were engaging themselves in prejudicial activities. Similarly, in the case of Detenu Dhakne, the action is founded on the basis that he abetted improper exports and claiming drawback fraudulently by offering his C.H.A. services to the exporter for the alleged prejudicial activities. The exporter and his associate showed the sample of export goods to him and he, in turn, instructed his staff to prepare the shipping bills and related documents for export. He instructed his staff to prepare, file the shipping bills and complete the Customs dock formalities. He offered his C.H.A. service without verifying quality and quantity of the samples of the items to be exported. He gave the blank annexure / declaration to his employee, Detenu Jadhav. He admitted misdeclaration in description, quantity, quality, valuation of the export goods and claiming drawback fraudulently by the exporter. In substance, he was indulging and abetting in smuggling activities.
::: Downloaded on - 09/06/2013 17:54:04 :::24 233211
17. Expression "smuggling" has been defined in Section 2(39) of the Customs Act, 1962. It means, in relation to any goods, any act or omission which will render such goods liable to confiscation under Section 111 or Section 113. In the present case, the act of commission and omission was in respect of the goods attempted to be exported or brought within the limits of Customs area for the purpose of being exported, and more particularly, goods entered for exportation under claim for drawback, which did not correspond, in any material particular, with the information furnished by the exporter or manufacturer under the Customs Act in relation to the fixation of rate of drawback under Section 75. It is true that none of the detenues are themselves exporters or manufacturers of goods entered for exportation. At best, they can be said to be facilitators or agents.
However, as they were associated with the prejudicial activities in that capacity, they can, certainly, be made liable for abetting the activity of smuggling of goods within the meaning of Section 3(1)(ii) of the COFEPOSA. The allegation against them is also of not disclosing the identities of the persons involved in the smuggling, as they were actively involved in the prejudicial activities. Thus the detenues can be said to have indulged in harbouring persons engaged in smuggling goods or in abetting the smuggling of goods, within the meaning of ::: Downloaded on - 09/06/2013 17:54:04 ::: 25 233211 Section 3(1)(v) of COFEPOSA. That does not require them to be the exporters or manufacturers of goods, who may be directly engaging in smuggling goods. All others, such as facilitators, nonetheless, can be proceeded for abetting the smuggling of goods or for harbouring persons engaged in smuggling of goods and abetting the smuggling goods. The petitioners, however, relying on the observations in the decision of our High Court in Maheshchandra Saxena v. State of Maharashtra - 2007 All MR (Cri) 2673, in particular paragraphs 24 and 25 thereof, would contend that, even in the present cases, the detenues merely acted as agents and were not the owners of the goods.
This decision is not an authority on the proposition that preventive detention action can never be taken against the persons, who merely act as agents in commission of prejudicial activities. On the contrary, the purport of clauses (ii) and (v) of sub-section (1) of Section 3 of COFEPOSA is sufficient to initiate preventive action even against the agents in crime or prejudicial activities.
18. Indeed, the petitioners are justified in pointing out that the Order of Detention refers to all the five activities provided for in Section 3(1) of the said Act, under Clauses (i) to (v) thereof, empowering the Detaining Authority to detain any person with a view ::: Downloaded on - 09/06/2013 17:54:04 ::: 26 233211 to preventing him from, in any manner, prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from indulging in specified prejudicial activities; whereas, the grounds of detention, at best, may spell out only activity ascribable to clauses
(ii) and (v). In other words, the other activities stated in the Order of detention cannot be supported on the basis of the activities mentioned in the Grounds of Detention. That, according to the petitioners, reflects on the subjective satisfaction recorded by the Detaining Authority; and, resultantly, the Order of Detention is vitiated on that count. Reliance is placed by the petitioners on the decision of our High Court in the case of Bhavesh Kantilal Jain vs. State of Maharashtra reported in 1998 All MR (Cri.) 175 to buttress the argument that the activities referred to in the order of detention from amongst the five activities specified in sub-section (1) of Section 3 should be present in the grounds of detention as well. In that case, however, it was noticed from the grounds of detention that the Detaining Authority was satisfied that the detenu and his associates were found in possession of the smuggled gold, but the order of detention was issued for preventing the detenu in future from smuggling goods. In this background, the Public Prosecutor had contended that it was not necessary to specify the activity referred to in sub-section (1) in the order of detention. That contention has been ::: Downloaded on - 09/06/2013 17:54:04 ::: 27 233211 rejected in paragraph 24 of the reported decision. In the present case, however, it is noticed that the order of detention refers to all the five activities specified in sub-section (1) of Section 3 of COFEPOSA, whereas, the grounds of detention refer to only activities ascribable to clauses (ii) and (v) of sub-section (1) of Section 3 i.e. of abetting the smuggling of goods or harbouring persons engaged in smuggled goods or in abetting the smuggling of goods respectively.
19. To get over this position, the respondents would contend that non-mention of other activities in the Grounds of Detention - for smuggling goods, engaging in transporting or concealing or keeping smuggled goods, dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, would make no difference. Even in absence of reference to those activities in the Grounds of Detention, the Order of Detention would be saved, at least on account of presence of one or the other activity specified in the Grounds of Detention; to wit, abetting the smuggling of goods or harbouring persons engaged in smuggling goods or in abetting the smuggling of goods, by virtue of Section 5-A of the said Act.
::: Downloaded on - 09/06/2013 17:54:04 :::28 233211
20. The counsel for the petitioners, however, would rely on the decision of Division Bench of our High Cort in the case of Smt. Shashikala Krishnarao Rane v. Union of India & Ors., 1987 Cr. L.J. 1787. Even in that case, the Order of Detention was based on clause (ii) of sub-section (1) of Section 3 of the said Act, i.e., abetting of smuggling of goods and also on clause (iii) of sub-section (1) of Section 3 of the said Act for engaging in concealing or keeping smuggled goods. The petitioner in that case did not dispute the fact that, as regards clause (ii), which related to the abetting of smuggling of goods, the order as well as the Grounds of Detention referred to the said activity. In the background of those facts, the counsel appearing for the State in that case had urged that the Order of Detention is saved on the principle of severability, keeping in mind the mandate of Section 5-A of the said Act. That argument, however, came to be rejected in the following words:-
"13. ...... Section 5-A provided that where a person had been detained in pursuance of an order of detention under sub-s. (1) of S. 3 which had been made such order of detention could be deemed to have been made separately on each of such grounds and accordingly such order could not be deemed to be invalid or inoperative merely because one or some of the grounds were (i) vague, (ii) non-existent, (iii) not relevant, (iv) not connected or not proximately connected with such person, or (v) invalid for any other reason whatsoever. Now it is necessary to point out that S. 5-A relates to the grounds furnished to a detenu in support of the Order of detention. It does not apply to an Order of detention. The grounds of detention are supplied to a detenu ::: Downloaded on - 09/06/2013 17:54:04 ::: 29 233211 under sub-s. (3) of S. 3 of the COFEPOSA Act. Sub-sec. (3) of S. 3 of the COFEPOSA Act is in the following terms:-
'(3) For the purposes of Cl. (5) of Art. 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.' It is therefore apparent that S. 5-A relates to the grounds furnished to a detenu in support of the order of detention and it has no relevance to the Order of detention. We must therefore reject the submission made by Mr. Bhobe."
ig (emphasis supplied)
21. Reliance is also placed on the unreported decision of the Division Bench in the case of Babulal Dhanji Makwana v. The State of Maharashtra & Ors., in Criminal Writ Petition No. 1051 of 2002 decided on 8th April, 2003. In that case, the Court found that, in the grounds of detention, the role of the detenu was, at best, one of carrier.
However, he was detained for smuggling goods. In paragraph 13 of this decision, the Court has opined:-
"13. We are also of the opinion that the detention order cannot be sustained on the ground that it was necessary to detain the detenu to prevent him from acting in any manner prejudicial to the conservation of foreign exchange with the aid of Section 5-A of the COFEPOSA. In Shashikala Krishnarao Rane vs. Union of India and others reported in 1987 Cr. L.J. 1797, the Division Bench of this Court has held that Section 5-A of the COFEPOSA relates to the grounds furnished to a detenu in support of the order of detention and it has no relevance to the order of detention. Therefore, even assuming that there could be some material ::: Downloaded on - 09/06/2013 17:54:04 ::: 30 233211 to come to the conclusion that the detenu was acting in any manner prejudicial to the conservation of foreign exchange, the order cannot be saved with the aid of Section 5-A of the COFEPOSA. In the circumstances, the order of detention will have to be set aside."
22. Reliance is also placed on the decision in the case of Gimik Piotr v. State of Tamil Nadu & Ors., (2010) 1 SCC 609, in particular, paragraphs 27, 28, 31 and 35. In our opinion, this judgment may be useful for some other proposition, but certainly, not for the question under consideration. Inasmuch as this judgment deals with only two issues formulated in paragraph 16 of the reported judgment, and the same has no bearing on the question under consideration. The question is: Whether Section 5-A of the said Act applies only to the grounds furnished to a detenu and not to an Order of Detention, as has been expounded in the case of Shashikala Rane (supra)? Indeed, the question was specifically posed in that case, as the same had arisen for consideration therein. The Court opined that Section 5-A of the said Act applied only to ground furnished to a detenu in support of the Order of Detention; and it has no relevance to the Order of Detention as such. This is the only logic that can be deduced from the above quoted extract. The other unreported judgment of our High Court relied upon in Makwana's case (supra) merely follows the dictum in ::: Downloaded on - 09/06/2013 17:54:05 ::: 31 233211 Shashikala Rane's case. In our opinion, the above view, with utmost respect, whittles down the intent behind the enactment of Section 5-A, which is primarily, to save the order of detention from being declared invalid or inoperative merely because one or some of the grounds referred to therein are vague; non-existent; not relevant; not connected or not proximately connected with such person; or invalid for any other reason whatsoever. To put it differently, if the Order of Detention, as in this case, were to refer to acts or omission constituting smuggling goods along with other specified activities in Section 3(1) of the said Act; but, in the Grounds of Detention furnished to the detenu, no reference is made to the activity of smuggling goods at all. Such order of detention would be bad as a whole, but then, it is saved on account of a legal fiction in Section 5A, if the other ground in support of the order of detention is relevant, definite and proximate. That is amply clear from the plain language of Section 5-A itself, which reads thus:-
"5-A. Grounds of detention severable.--Where a person has been detained in pursuance of an order of detention under sub-section (1) of Section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly--
(a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are--
(i) vague,
(ii) non-existent, ::: Downloaded on - 09/06/2013 17:54:05 :::
32 233211
(iii) not relevant,
(iv) not connected or not proximately connected with such person, or
(v) invalid for any other reason whatsoever, and it is not, therefore, possible to hold that the Government or officer making such order would have been satisfied as provided in sub-section (1) of section 3 with reference to the remaining ground or grounds and made the order of detention;
(b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said sub-section (1) after being satisfied as provided in that sub-section with reference to the remaining ground or grounds."
ig (emphasis supplied)
23. We are conscious of the fact that it is not open for the Bench of coordinate jurisdiction to take a different view than the one already taken by another Bench on a question of law. However, we are fortified in our opinion on the basis of the decision of the Constitution Bench of the Apex Court in Attorney General for India & Ors. v.
Amratlal Prajivandas & Ors., (1994) 5 SCC 54. Although the unreported decision of another Division Bench was rendered after the aforesaid decision of the Apex Court, it has not noticed the same.
Instead, it makes reference to and follows the legal statement occurring in the earlier decision of Division Bench of this Court in Shashikala Rane's case on the point under consideration.
::: Downloaded on - 09/06/2013 17:54:05 :::33 233211
24. In our opinion, in view of the dictum of the Apex Court in Attorney General for India's case (supra), the legal position stated in Shashikala Rane's case, and as followed in the unreported decision in Babulal Makwana's case, stands impliedly over-ruled. The Constitution Bench of the Apex Court posed to itself Question No. 6 as follows:-
"Whether Section 5-A of COFEPOSA is violative of Clause (5) of Article 22?"
The challenge was inter alia on the basis that the parliament was not competent to make a law saying that where the grounds upon which the requisite satisfaction has been formed on partly good and partly bad, yet the order must be held to be good with reference to and on the basis of good grounds; eschewing the bad grounds. That law will be directly in conflict with Article 22(5). While answering the said question, the Apex Court has interpreted Section 5-A of the said Act. In paragraph 47, the Court observed thus:-
"47. The section is in two parts. The first part says that where an order of detention is made on two or more grounds, 'such order of detention shall be deemed to have been made separately on each of such grounds', while the second part says that such order shall not be deemed to be invalid or inoperative merely for the reason that one or some of the grounds are either vague, non-existent, irrelevant or ::: Downloaded on - 09/06/2013 17:54:05 ::: 34 233211 unconnected. That the second part is merely a continuation of and consequential to the first part is evident from the connecting words 'and accordingly'. The second part goes further and says that the order of detention must be deemed to have been made on being satisfied with the remaining good ground or grounds, as the case may be. Both the parts are joined by the word 'and'."
Again, in paragraph 49, the Court observed thus:-
"49. Now, take a case, where three orders of detention are made against the same person under COFEPOSA. Each of the orders is based upon only one ground which is supplied to the detenu. It is found that the ground of detention in support of two of such orders is either vague or irrelevant. But the ground in support of the third order is relevant, definite and proximate. In such a case, while the first two orders would be quashed, the third order would stand. This is precisely what the first part (the main part) of Section 5-A seeks to do. Where the order of detention is based on more than one ground, the section creates a legal fiction, viz., it must be deemed that there are as many orders of detention as there are grounds which means that each of such orders is an independent order. The result is the same as the one in the illustration given by us hereinabove. The second part of it is merely clarificatory and explanatory, which is evident from the fact that it begins with the word 'accordingly' - apart form the fact that it is joined to the first part by the word 'and'. In such a situation, we are unable to see how can the section be characterised as inconsistent with Article 22(5).
Had there been no first part, and had the section consisted only of the second part, one can understand the contention that the section is in the teeth of Article 22(5) as interpreted by this Court - this was indeed the situation in K. Yadigiri Reddy v. Commissioner of Police, ILR 1972 AP 1025 as we shall presently indicate. It is difficult to conceive any inconsistency or conflict between Article 22(5) and the first
- the main - part of Section 5-A. Parliament is competent to create a legal fiction and it did so in this case. Article 22(5) does not in terms or otherwise prohibit making of more than one order simultaneously against the same person, on different grounds. No decision saying so has been brought to our notice. Be that as it may, we do not see why Parliament is not competent to say, by creating a legal fiction, that where an order of detention is made on more than one ground, it must be deemed that there are as many ::: Downloaded on - 09/06/2013 17:54:05 ::: 35 233211 orders of detention as there are grounds. If this creation of a legal fiction is competent, then no question of any inconsistency between the section and Article 22(5) can arise." (emphasis supplied)
25. It may be useful to also refer to the dictum of the Apex Court in the case of State of Gujarat v. Chamanlal Manjibhai Soni, (1981) 2 SCC 24, which reads thus:-
"What Section 5-A (of the COFEPOSA) provides is that where there are a number of grounds of detention covering various activities of the detenu spreading over a period or periods, each activity is a separate ground by itself and if one of the grounds is irrelevant, vague or unspecific but the other grounds are clear and specific, then that by itself would not vitiate the order of detention."
(emphasis supplied)
26. A priori, we have no hesitation in taking the view that in the facts of this case, the impugned Order of Detention will be saved by virtue of Section 5-A of the COFEPOSA at least in respect of activities referable to clauses (ii) and (v) of Section 3(1) of the act, which are present both in the Order of Detention as well as the Grounds of Detention. The said grounds in support of the order are relevant, definite and proximate.
27. Relying on the decision of the Karnataka High court in the case of Anwar Abdulla etc., v. The union of India & Ors., 1992 ::: Downloaded on - 09/06/2013 17:54:05 ::: 36 233211 Cri. L.J. 3616, it was then argued that merely approving the remarks noted by the subordinate officers, in particular the Sponsoring Authority, is a case of non-application of mind by the Detaining Authority or the Authority deciding the representation. In the first place, the opinion recorded by the Karnataka High Court is in the context of the fact situation of the case before it, wherein even the grounds were made ready by someone else than the Detaining Authority. Our attention was also invited to the decision of the Apex Court in the case of Rajesh Vashdev Adnani vs. State of Maharashtra reported in 2006 All MR (Cri.) 1781 (S.C.). In that case, the Detaining Authority directed obtaining of some documents when the proposal for detention of the detenu was submitted. She also sought for the statement made by the detenue before the Additional Chief Metropolitan Magistrate. The Detaining Authority further took note of a purported pre-detention representation made by the detenu on 18th April, 2004. It was also noted that the detention order was passed upon discussions made with three Officers. Further, the order of detention as well as grounds were formulated and placed before the Detaining Authority for approval. It was noticed that only small changes were made by some Officers such as substituting words "he"
by "you". The change in the proposal and the order of detention being ::: Downloaded on - 09/06/2013 17:54:05 ::: 37 233211 verbatim suffered from non-application of mind. The Court accepted the said challenge and found that it was a case of non-application of mind on the part of the Detaining Authority. That conclusion reached by the Court was in the fact situation of that case. That is not the case on hand. There is nothing to indicate that the Grounds of Detention have been formulated by someone - other than the Detaining Authority herself. The fact that the Detaining Authority considered the noting made by the other officers in succession, by itself, does not mean that it would be a case of non-application of mind, unless something more was shown. Suffice it to hold that in the present case, it is not possible to take the view that the Detaining Authority herself did not examine the proposal independently or formulated the grounds for detention on her own.
28. The counsel for the petitioners had then relied on the decision of the Apex Court in Vijay Kumar Dharna Alias Koka v.
Union of India - (1990) 1 SCC 606. We fail to understand how this decision will be of any avail to the petitioners. In that case, the Court noted that there was variance in the Gurumukhi version of the detention order and that in the English version. In Gurumukhi version, it was mentioned that it had become necessary with a view to ::: Downloaded on - 09/06/2013 17:54:05 ::: 38 233211 preventing the detenu from smuggling goods and from abetting the smuggling of goods - activities prescribed in clauses (i) and (ii) of Section 3(1) of COFEPOSA. But in grounds of detention, the satisfaction recorded by the Detaining Authority was in respect of preventing the detenu from concealing, transporting smuggled goods as well as dealing in smuggled goods - activities prescribed in clauses (iii) and (iv) of Section 3(1). More or less, similar is the factual position found in the case of Prithvi Sovera Kuntal v. State of Maharashtra -
2001 All MR (Cri) 1163. In that case, the detenu was sought to be detained to prevent him in future from abetting the smuggling of goods, whereas the grounds of detention mentioned reason as to prevent the detenu in future from smuggling of goods. Reliance was placed on another decision of the Apex Court in the case of Bannalal Vahilda Chavla vs. Union of India & Ors. Reported in (1999) 6 SCC 210.
Once again, the Court interfered with the detention order on the finding that the satisfaction arrived at by the Detaining Authority cannot be said to be reasonable and genuine. Having found that there was hardly any reason for the detenu to collude with the firm which ::: Downloaded on - 09/06/2013 17:54:05 ::: 39 233211 was dishonestly selling blue-coloured kerosene to those not entitled to it and was thus indulging in black marketing of blue-coloured kerosene.
In none of the above mentioned decisions, the question whether the order of detention was and could be saved on other valid, relevant and proximate ground by virtue of Section 5A of the Act was put in issue.
29. That takes us to the next argument that the continued detention of the respective detenues had become illegal and unconstitutional on account of delay in deciding the representation by the State Government as well as the Detaining Authority. The relevant dates for considering this submission are common to first two cases that of detenues Jadhav and Waghmare. In the petition filed by Detenu Jadhav, the representation was submitted by the detenu on 8th August, 2011 addressed to the State Government as well as the Detaining Authority. The Detaining Authority considered the representation on 7th September, 2011 and the State Government considered it on 5th September, 2011, respectively. It is common ground that the representation dated 8th August, 2011 was received on 9th August, 2011.
From the original record, which was produced before us, it is noticed that, on receipt of the said representation in Mantralaya, para-wise ::: Downloaded on - 09/06/2013 17:54:05 ::: 40 233211 remarks of the Sponsoring Authority were invited vide letter dated 11th August, 2011. The said letter was sent by ordinary post, which was received in the Office of the Sponsoring Authority on 16th August, 2011. On 17th August, 2011, the concerned officer was busy in the High Court in connection with criminal writ petition filed by the detenu. The para-wise comments were prepared on 18th and 19th August, 2011. 20th August, 2011, being Saturday, 21st August, 2011, being Sunday and 22nd August, 2011, being a public holiday, the file was put up for discussion and approval of para-wise comments before the Joint Commissioner on 23rd August, 2011. The final para-wise comments sent by Joint Commissioner was despatched on 24th August, 2011. A copy was sent to Mantralaya on 25th August 2011. That copy was received in Mantralaya on 26th August, 2011. 27th and 28th August, 2011 were holidays. On 29th August, 2011, due to heavy rains, the transport system in the city was totally paralysed, as a result of which, there was no attendance in the office. On 30th August, 2011, the representation was submitted along with the para-wise comments and other remarks to the Detaining Authority as well as the Appropriate Authority of the State Government. 31st August, 2011 and 1st September, 2011, being holidays, the representation could not be processed by the concerned officers. On 2nd September, 2011, the ::: Downloaded on - 09/06/2013 17:54:05 ::: 41 233211 Under Secretary processed the file and made his endorsement. 4th September, 2011 was a holiday. The file was accordingly put up before the Deputy Secretary, who made his endorsement and signed it on 5th September, 2011. On the same day, the file was placed before the Additional Chief Secretary, being the Appropriate Authority of the State Government, who considered the representation and rejected the same. The representation was, however, considered by the Detaining Authority on 7th September, 2011 and came to be rejected. Both the Offices of the Detaining Authority and the Appropriate Authority of the State Government informed the detenu about the rejection of the representation by communication dated 7th September, 2011.
30. In the reply-affidavit filed on 13th September, 2011 by the Detaining Authority before this Court, for some inexplicable reason, it has been mentioned that the representation was undecided till then.
This anomaly has been explained by the respondents by pointing out that the para-wise comments to the writ petition were forwarded by the Detaining Authority to the Office of the Public Prosecutor before 7th September, 2011, i.e., on 17th August, 2011. On the basis of the said para-wise comments, the draftsman of the reply-affidavit mentioned the said fact in the said affidavit and the Detaining Authority, while ::: Downloaded on - 09/06/2013 17:54:05 ::: 42 233211 affirming the affidavit on 13th September, 2011, simply glossed over this factual error which had crept in in the reply-affidavit. The explanation is plausible one. We cannot attach much importance to this anomaly. The fact remains that, after receipt of representation in Mantralaya on 9th August, 2011, the same was processed continuously.
It is not a case where the representation remained unattended in any office at any stage.
31. Indeed, the petitioners may be justified in pointing out that, upon receipt of representation on 9th August, 2011 in Mantralaya, it should have been placed before the concerned Authority of the State Government and the Detaining Authority, respectively, on the same day or soon thereafter. Instead, the office in Mantralaya invited para-
wise remarks of the Sponsoring Authority, in the first place, on its own, without insistence by the Appropriate Authority of the State Government or the Detaining Authority in that behalf. This argument is completely oblivious of the working of the Government offices.
Even though the final decision to be taken on the representation is that of the Detaining Authority or the Appropriate Authority of the State, the file has to be processed through proper channel. That procedure is followed as per the Rules of Business. Such process is intended to ::: Downloaded on - 09/06/2013 17:54:05 ::: 43 233211 have checks and balances in the decision-making process, and more particularly, to abreast the final Authority who is expected to take the decision of all the material and relevant aspects. No fault can be found with such a procedure. Rather, the same is in abidance with the principle of rule of law. What is to be scrutinised by the Court is:
Whether the file was continuously moving and was attended to or it is a case of supine indifference and callousness at any one or more stages in the decision-making process? Considering the facts unravelled from the reply-affidavit as well as from the notings in the original file, it is not possible to take the view that there was any inaction, indifference or callousness at any stage in the consideration of the representation at all by the Detaining Authority or the Appropriate Authority of the State Government. The learned A.P.P. has placed reliance on the decision of the Apex Court in the case of Kamarunnissa vs. Union of India & Anr. reported in (1991) 1 SCC 128. Even in that case, the grievance of the detenu was that his continued detention had become illegal due to inordinate delay in consideration of his representation by the Authority. In Para 7 of the decision, after adverting to the relevant dates of movement of the file/representation, which is more or less similar to that in the present set of cases. The Court opined that it was obvious from the explanation that there was no delay on the part of the ::: Downloaded on - 09/06/2013 17:54:05 :::
44 233211 Detaining Authority in dealing with the representations of the detenu.
The Court restated the legal position that whether or not the delay, if any, is properly explained would depend on the facts of each case. As noticed earlier, we are satisfied that there is no delay in consideration of representations by the authority concerned.
32. We may, however, notice that the office in Mantralaya, after receipt of the representation on 9th August, 2011, sent communication to the Sponsoring Authority, inviting its para-wise remarks on the representation by communication dated 11th August, 2011. That letter was received in the office of the Sponsoring Authority only on 16th August, 2011. We were appalled to note that the said communication was sent by "ordinary post" to the office of the Sponsoring Authority, which was situated at a distance of only around 2½ km. from Mantralaya. The office practice followed in Mantralaya of despatching all communications by ordinary post is being followed even in cases involving question of life and liberty of a detenu. We can only deprecate that such practice is being followed even in respect of representations made by detenues. Instead, such communications ought to be sent by hand-delivery or special messenger to the ::: Downloaded on - 09/06/2013 17:54:05 ::: 45 233211 Sponsoring Authority, and more so when his office was situated only around 2½ km. away from Mantralaya. We hope and trust that the Secretary, Home Department, will do the needful for issuance of instructions to all concerned that representations pertaining to detenues should be treated as immediate file; and, in addition to exchanging inter-departmental communications by post, the same should be sent by hand-delivery or special messenger to avoid delay, which inevitably infringes the rights guaranteed to detenu under the Constitution. We may, however, observe that the time taken or spent in transmission of the inter-departmental communication by post will be a just and sufficient explanation by the Authority - as the Authority cannot be faulted for that.
33. As a matter of fact, a Bench of this Court - to which one of us was a party (A.M. Khanwilkar, J.) - in the case of Shashikant A. Alavane v. State of Maharashtra & Ors., 2001 Cri. L.J. 1503, particularly paragraphs 20 to 22 thereof, almost a decade back, had occasion to make observation in this regard, considering the fact that the Courts do not look with equanimity upon delays when the liberty of a person is concerned. Indubitably, representations of the detenu are required to be decided with utmost expedition as it cannot brook delay.
::: Downloaded on - 09/06/2013 17:54:05 :::46 233211 It has to be taken up for consideration as soon as it is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu.
34. The counsel for the petitioners, however, has pressed into service the decision of the Apex Court in the case of Harish Pahwa v.
State of U.P. & Ors., AIR 1981 S.C. 1126. In that case, however, it was found that the delay of six days in consideration of representation by the Chief Minister was not acceptable. Reliance was also placed on another decision of the Apex Court in the case of Harshala Santosh Patil v. State of Maharashtra & Ors., (2006) 12 S.C.C. 211. In that case also, there was unjustified and avoidable delay of five days in consideration of the representation.
35. The counsel for the respondents has justly relied on the dictum of the Apex Court in the case of Abdu Salam alias Thiyyan S/o. Thiyyan Mohammed v. Union of India & Ors., (1990) 3 SCC 15.
In that case, the appellant made representation to the Detaining Authority on September 27, 1998, which was rejected by the State Government on October 1, 1998 and by the Central Government on ::: Downloaded on - 09/06/2013 17:54:05 ::: 47 233211 November 2, 1998. The Court, after adverting to its earlier decisions, analysed the facts of that case, and observed that, from the explanation given by the Authority, it can be seen that the representation was considered almost expeditiously, and there is no "negligence, or callous inaction or avoidable red-tapism".
36. We have no manner of doubt that the said principle applies on all fours to the fact situation of the present case. It is neither a case of negligence or callous inaction or avoidable red-tapism, as is evident from the reply-affidavit and the notings made in the concerned original file of the Sponsoring Authority and that of the Detaining Authority. In that view of the matter, even this challenge of the petitioners ought to fail.
37. It is trite to note that, if the Authority processes the file expeditiously, the petitioners may, as in this case, question that action on the ground that it has resulted in non-application of mind. This is precisely the plea taken in this case as the Detaining Authority after receipt of resubmitted proposal on 19th July, 2011 proceeded to pass the order of detention on 20th July, 2011. We, therefore, fail to understand as to how the petitioners can be heard to complain about thorough ::: Downloaded on - 09/06/2013 17:54:05 ::: 48 233211 examination of the representation by the Authority through proper channel, which is a process known to law, and not a matter of red-
tapism. Time taken in following that procedure cannot be said to be avoidable procedure. Indeed, the avoidable delay in the present case due to sending the communication to the Sponsoring Authority by "ordinary post" can be frowned upon, but it would not be a case of negligence or callousness, or inaction of the Authority as such.
38. Taking over all view of the mater, therefore, the challenge on the ground that there has been delay in consideration of the representation either by the Appropriate Authority of the State Government or the Detaining Authority, as the case may be, is devoid of merit.
Additional points in the case of detenu Waghmare:
39. That takes us to the additional ground urged in the petition filed in the case of Detenu Waghmare. It is the case of the petitioner that the said detenu has studied only up to 10th standard in Marathi Medium. He does not have workable knowledge of English Language.
However, the impugned order, along with the Grounds of Detention, served on him was in English Language. Besides, that was not ::: Downloaded on - 09/06/2013 17:54:05 ::: 49 233211 explained to the detenu in Marathi. Thus, the Grounds of Detention, in law, have not been communicated to the detenu, and it is, in fact, an infraction of Article 22(5) of the Constitution of India. The Detaining Authority, in reply-affidavit, with reference to this plea has stated that it went by the report of the Sponsoring Authority in the proposal that the detenu knew English Language. The Sponsoring Authority, in the reply-affidavit, however, merely stated that the plea taken by the petitioner that he had no workable knowledge of English Language is factually incorrect. The Sponsoring Authority also chose to rely on the affidavit of the Executing Authority. The Executing Authority, in turn, in its reply, has stated that the detenu was served with the Detention Order along with the Grounds of Detention and Compilation on 26th July, 2011. The detenu requested to hand over all the documents and compilation to his cousin brother, viz., the present petitioner, i.e., Vikram Vithal Borhade. Accordingly, the documents were handed over to the present petitioner.
40. The Sponsoring Authority, pursuant to the liberty given by this Court, in the further affidavit dated 20th October, 2011, has explained the stand taken by it in its earlier affidavit that the plea under consideration taken by the petitioner is factually incorrect. In the ::: Downloaded on - 09/06/2013 17:54:05 ::: 50 233211 further affidavit filed by the Sponsoring Authority, it is stated that the office record of the Sponsoring Authority shows that the detenu has knowledge of English Language. The detenu has studied up to 10th standard in Marathi Medium. The Sponsoring Authority has then, on affidavit, stated that the circumstances indicated in the affidavit would clearly go to show that the detenu has knowledge of English Language.
To wit, when the detenu was served with summons dated 11th November, 2010 by his letter dated 17th November, 2010, he asked for some time on medical ground. The said reply letter is in English and is duly signed by the detenu in English. Similarly, another communication sent by the detenu under his own signature to the Commissioner of Customs (Preventive) dated 22nd November, 2010, is also in English. The Sponsoring Authority has also produced another communication sent by the detenu in English under his own signature dated 25th November, 2010 addressed to the Commissioner of Customs (Preventive). Lastly, the respondents are relying on the representation against the Order of Detention filed by him through jail in English Language.
41. In the first place, the factual position stated in the further affidavit has remained uncontroverted. The plea taken by the petitioner ::: Downloaded on - 09/06/2013 17:54:05 ::: 51 233211 that he has had no workable knowledge of English is a disputed question of fact. It is word against word. But then the respondents have produced contemporaneous documentary evidence which certainly suggests that the detenu himself had sent those letters in English under his signature in English. The counsel for the petitioner, however, was at pains to persuade us to take the view that the detenu has no knowledge of English, but had merely signed documents prepared by someone else presumably his Advocate. She submits that, as regards the last document relied upon by the respondents, viz., representation made by the detenu under his signature sent through jail against the Detention Order to the concerned Authority, the same was, in fact, prepared by her and was sent to the Superintendent of Prison under cover of her letter dated 6th August, 2011 (as produced before the Court). Even if we accept this explanation, it does not, however, explain as to how the detenu had sent other correspondence in English to the Commissioner of Customs (Preventive) in response to the summons on different dates. The learned Advocate for the detenu wants the Court to assume that even the said letters, though issued in the name of detenu in English and initialled by him in English, were prepared by someone else. It is not possible to assume that fact sans any tangible explanation as to who had helped the detenu in drafting ::: Downloaded on - 09/06/2013 17:54:05 ::: 52 233211 the same. Therefore, it is not possible to countenance the said submission made across the Bar, especially when the responsible officers of the respondents, on affidavit, have stated that the file pertaining to the detenu in the office of the Sponsoring Authority shows that the detenu is having workable knowledge of English Language having studied up to 10th standard, albeit in Marathi Medium. That is a plausible plea. For, it is common knowledge that even in Marathi Medium schools, in the State of Maharashtra, English Subject is taught as a compulsory subject from 1st standard since 2000, and, earlier to that, from 5th standard. It is one thing to say that the detenu is not conversant with English Language at all than to say that he has no workable knowledge of that language. Considering the above, the said petitioner has failed to substantiate that the detenu has no workable knowledge of English Language.
42. The counsel for the petitioner, however, relied on the decision in the case of Smt. Raziya Umar Bakshi v. Union of India & Ors., AIR 1980 S.C. 1751. The only point argued in that case was that the detenu was served with Grounds of Detention in English Language, which she did not know or understood and no translated script was supplied to her. The petitioners have also relied on the decision of the Apex Court in the case of Nainmal Pertap Mal Shah vs. Union of India & Ors. reported in AIR 1980 SC 2129. The ground urged by the detenu in that case was that the grounds of detention furnished to ::: Downloaded on - 09/06/2013 17:54:05 ::: 53 233211 the detenu were in English language. He was not conversant with the said language. That challenge was countered by the respondents on the assertion that the grounds were explained to the detenu by the Prison Authorities. However, the Court negated that plea as in the affidavit the name of the Authority concerned or his designation was not mentioned nor any affidavit of the person who explained the contents of the grounds to the detenu was filed. Even the stand taken by the Authorities that the detenu had signed number of documents in English and for which, it may be presumed that he knew English, came to be rejected being founded on pure speculation. In the present case, however, in addition to asserting that the record in the office of the Sponsoring Authority indicates that the detenu was conversant with English, the respondents have also relied on documentary evidence to substantiate that in the past the detenu had entered into communication in his own name with the concerned Authorities in English under his own signature which was also in English. Admittedly, the detenu has studied up to 10th standard. No rejoinder is filed by the detenu to deny the fact asserted by the respondents or to explain the circumstances in which he had sent the stated communications in English. It is not a case of mere signature on number of documents in English by the detenu.
Further, the fact asserted by the respondents on affidavit that when the ::: Downloaded on - 09/06/2013 17:54:05 ::: 54 233211 order and grounds of detention were sought to be served on the detenu, he asked to hand it over directly to the petitioner herein who was present at the spot. That factual position asserted by the respondents has remained unchallenged and uncontrovertd. Further, the petitioner does not say that he is not conversant with English language and that he did not understand the contents of the said documents when the same were handed over to him or that he has had no opportunity whatsoever to explain it to the detenu at the same time. Suffice it to observe that the petitioner has not been able to substantiate the fact that the grounds of detention were not communicated to the detenu soon after he was detained on 20th July, 2011 or that he was unable to understand the contents of the order of detention and grounds of detention being in English and was, thus, denied opportunity to make representation at the earliest. As a matter of fact, a detailed, elaborate and comprehensive representation was made by the detenu as early as on 8th August, 2011 itself. That representation was made without any loss of time, which was obviously prepared by the detenu's advocate on the basis of instructions given by him or his relatives. Accordingly, the ground of challenge under consideration is devoid of merit.
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43. The other contention at the instance of Detenu Waghmare is that no material was placed before the Detaining Authority to show that the I.E. Code was arranged by the detenu. On the contrary, the I.E. Code shows that the said Code was taken by Naeemuddin Saiyed on or about 10th December, 2009 - much before the said Naeemuddin Saiyed was introduced to the detenu by Asif Sidiqui.
Similarly, no material was placed before the Detaining Authority, from which, it can be said that the detenu had arranged transport of the goods to be exported from Surat to Mumbai and kept the said goods at the warehouse. On this ground alone, the Detention Order is vitiated and suffers from non-application of mind. The argument, though attractive at the first blush, will have to be stated to be rejected.
44. This plea has been countered by the respondents. The reply-affidavit of the Detaining Authority asserts that the fact so stated ::: Downloaded on - 09/06/2013 17:54:05 ::: 56 233211 in the grounds is noticed from the statement of Saiyed J. Naeemuddin, the exporter, recorded under Section 108 of the Customs Act, 1962 on 3rd December, 2010. He had told Detenu Waghmare to get the I.E.C. The said Naeemuddin, in his further statement dated 1st December, 2010, has stated that Detenu Waghmare arranged transport of the export goods from Surat to Mumbai and further to Shed No. 3 of D-
Node, JNPT. That fact was corroborated by Khalil Ahmed Rashid Ahmed Kapadia, another accused in the case, in his statement under Section 108 of the Customs Act. The Detaining Authority has referred to other material such as statements of Detenu Dhakne dated 1st December, 2010 and Ashutosh Rai dated 8th February, 2011 and 11th February, 2011 and 31st March, 2011 to counter the suggestion that no material was placed before the Detaining Authority, from which, it can be said that the detenu had arranged for transport of the goods to be exported from Surat to Mumbai and kept the said goods at a warehouse.
45. Suffice it to observe that the fact that I.E. Code was not placed before the Detaining Authority along with compilation of documents cannot be the basis to assume that the Detaining Authority ::: Downloaded on - 09/06/2013 17:54:05 ::: 57 233211 could not have arrived at the subjective satisfaction as recorded by her on the basis of the material already produced before her, which would go to show that the detenu was involved in the crime and had propensity to indulge in prejudicial activities in future - considering the over all view emerging from the material on record. The Detaining Authority has explained that position in the reply-affidavit as well.
Somewhat similar argument is made at the instance of Detenu Dhakne.
We shall elaborate the legal position for rejecting this contention a little later. For the same reasons, the argument under consideration will have to be rejected. It is not a case of non-existent or not relevant ground.
46. As no other ground is urged in Criminal Writ Petition Nos. 2332 and 2333 of 2011, respectively, besides the ones referred to above, both these petitions ought to fail.
Re : Additional grounds in the case of the detenu Dhakne :
47. That takes us to the additional ground taken in the third petition. According to Detenu Dhakne, the Commissioner of Customs had suspended the C.H.A. Licence of the detenu's Company on or ::: Downloaded on - 09/06/2013 17:54:05 ::: 58 233211 about 22nd March, 2011. The copy of the said suspension order was also sent to the Sponsoring Authority. However, the Sponsoring Authority did not place the said order of suspending C.H.A. Licence of the detenu's Company before the Detaining Authority. It was incumbent upon the Detaining Authority to have considered the said vital document before arriving at her subjective satisfaction. Besides, the Detaining Authority ought to have furnished copy of the said vital document to the detenu along with the Grounds of Detention, and in absence of the said document, has arrived at the subjective satisfaction which is nothing but sham and unreal. It is a case of non-application of mind on the part of the Detaining Authority. This grievance is made in Ground No. (iv) of the petition.
48. The Detaining Authority, in the reply-affidavit dated 27th September, 2011, has countered the said ground in the following words:-
"6. With reference to para 5(iv) (of the petition), I say that the Petitioner's claim is not tenable regarding the suspension of CHA licence of the detenu. The suspension order annexed as Annexure 'D' to the petition specifically mentions the grounds for suspension of the detenu's CHA licence, wherein all his statements and the statements of his employee Shri Bala B. Jadhav recorded under section 108 of the Customs Act, 1962 wherein they had confessed about fraud committed by them were considered by the authorities for the suspension of the CHA licence. All the said ::: Downloaded on - 09/06/2013 17:54:05 ::: 59 233211 statements were placed before me. Hence the argument that copy of the said suspension order was not placed before me does not hold good. Further the cancellation of CHA licence of the detenu is not the criteria or parameter for his on indulgence in smuggling activities in future. It is merely one of the remedial measures taken for stopping the future participation of the detenu in similar matters. Further the detention of the detenu under COFEPOSA ACT, 1974, is preventive measure only to prevent the detenu from indulging in smuggling activities. It is the irresponsible attitude of the detenu who as a bonafide CHA is bound by the obligations as mentioned in the Customs House Agents Regulations, 2004, which the detenu has failed to do and therefore, it cannot be said that the detention order is malafide and null and void."
49. The Sponsoring Authority, while dealing with the said contention, has stated thus:-
"The detaining authority on the material facts available on record and after satisfying herself with the documentary presentation as clearly stated in the grounds of detention, communicated to the detenu, as to how she arrived at the decision that the detenu should be detained under the provisions of the COFEPOSA Act. The petitioner's claim is not tenable regarding the suspension of CHA licence of the detenu. The suspension order annexed as Annexure D to this petition, specifically mentions the grounds for suspension of the detenu's CHA Licence, wherein all his statements and the statements of his employee Shri. Bala B. Jadhav recorded under Section 108 of the Customs Act 1962 wherein they had confessed about fraud committed by them were considered by the authorities for the suspension of the CHA licence. All the said statements were placed before the detaining authority. Hence the argument that copy of the said suspension order was not placed before the detaining authority does not hold good. Further the cancellation of CHA licence of the detenu is not the criteria for parameter for non indulgence in smuggling activities in future. It is merely one of the remedial measures taken for stopping the future participation of the detenu in similar matters. Further the detention of the detenu under COFEPOSA Act, 1974, is preventive measure only to prevent the detenu from ::: Downloaded on - 09/06/2013 17:54:05 ::: 60 233211 indulging in smuggling activities. It is the irresponsible attitude of the detenu who as a bonafide CHA is bound by the obligations as mentioned in the Customs House Agents Regulations, 2004, which the detenu has failed to do. Hence it cannot be said that the detaining authority has considered piecemeal the documents placed before her. Therefore, it cannot be said that the abovementioned Detention Order (is) malafide, ab-initio, null and void."
50. In the first place, the fact that the C.H.A. Licence of the detenu's Company has been suspended cannot be the basis to doubt the subjective satisfaction reached by the Detaining Authority, in the fact situation of the present case, that the detenu may indulge in similar prejudicial activities in future and to prevent him from doing so, it was necessary to detain him. This subjective satisfaction has been recorded in the backdrop that the acts or omission resulting in the offence were the outcome of the activity undertaken in an organised manner in which the detenu was associated. If it is a case of organised activity, merely because the CHA licence of the detenu's Company has been suspended may not dissuade, much less, prevent the detenu from indulging in the same prejudicial activities successively by taking help of others who were involved in smuggling, whose identity was not being disclosed by the detenu.
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51. We are in complete agreement with the stand taken by the respondents that the action of preventive detention is only a measure to prevent the detenu from indulging in prejudicial activities in future.
The fact that the order of the Commissioner was not placed before the Detaining Authority or, for that matter, supplied to the detenu along with the Grounds of Detention, in our opinion, does not take the matter any further. Indubitably, the justness of the subjective satisfaction of the Detaining Authority ought to be tested on the basis of the material placed before her. That subjective satisfaction cannot be doubted on account of non inclusion of order suspending C.H.A. Licence of detenu's Company. Reliance was placed on the observation of the Apex Court in the case of Gimik Piotr (supra). In that case, the passport of the detenu was already impounded when order of detention was passed against him under Section 3(1)(i) of Act. In this backdrop, it was argued on behalf of the detenu that the Detaining Authority having failed to examine the issue as to whether the detenu would be able to continue his prejudicial activities of smuggling goods, and it was not open to the Detaining Authority to speculate that the detenu would continue to indulge in the prejudicial activities even in absence of a passport. In our opinion, reliance placed on the above decision is inapposite to the fact situation of the present case. In this case, as noted ::: Downloaded on - 09/06/2013 17:54:05 ::: 62 233211 earlier, the detenu was found to be involved in commission of prejudicial activities in an organised manner along with others who were involved in smuggling goods. Obviously, the subjective satisfaction recorded by the Detaining Authority, is founded on the material placed before her that the detenu was involved in the commission of prejudicial activities and would continue with the prejudicial activities by taking help of others who were involved in smuggling, whose identity has not been disclosed. In our opinion, the principle stated in Abdul Sathar Ibrahim Manik v. Union of India and others reported in (1992) 1 SCC 1 can be usefully pressed into service to the fact situation of the present case. The learned A.P.P. has rightly placed reliance on the decision of the Apex Court in the case of Madan Lal Anand vs. Union of India & Ors. Reported in AIR 1990 SC 176, in particular, paragraphs 27 and 28 thereof. The argument of the detenu was that the Detaining Authority had relied upon and referred to the confessional statement of the detenu as recorded by the Collector under Section 108 of the Customs Act, in the grounds of detention, the retraction made by detenu was not placed before the Detaining Authority for his consideration. If that document was to be considered, the subjective satisfaction of the Detaining Authority could have been in favour of the detenu and against making an order of ::: Downloaded on - 09/06/2013 17:54:05 ::: 63 233211 detention. Notably, the Court proceeded to hold that it is desirable to note that any retraction made should also be placed before the Detaining Authority. But, that does not mean that if any such retraction is not placed before the Detaining Authority, the order of detention would become invalid. The Court while restating the said legal position placed reliance on the decision of the Apex Court in the case of Prakash Chandra Mehta vs. Commissioner and Secretary, Government of Kerala reported in (1985) Suppl.SCC 144. Further, while considering the facts of that case, the Court opined that the order of detention was saved by virtue of Section 5A of the Act as noticed from the discussion in Paragraph 29 thereof.
52. Even the other argument of detenu Dhakne that there was no material on record to even remotely indicate that the detenu had indulged in any prejudicial activities even after the suspension of licence and, for that reason, the Detaining Authority could not have reached the subjective satisfaction that preventive detention was imperative. It is not possible to countenance this submission. The Detaining Authority, in the present case, has considered the statements of all the accused recorded under Section 108 of the Customs Act, as also other material which indicates that the prejudicial activity was ::: Downloaded on - 09/06/2013 17:54:05 ::: 64 233211 conducted in organised manner and Detenu Dhakne was part of that larger conspiracy, and has propensity to commit such offences in future. For committing such organised prejudicial activity, existence or non-existence of CHA licence can be no impediment if the person has other means and resources to continue the activities. In other words, there is no tangible reason to doubt the subjective satisfaction of the Detaining Authority that the detenu has propensity to indulge in the prejudicial activities in future.
53. The other additional ground on behalf of Detenu Dhakne is about the delay in deciding representation by the Detaining Authority and the State Government. This argument is canvassed on the basis of the dates mentioned in the reply-affidavit filed by the Detaining Authority and the Deputy Secretary of the State Government. In paragraph 3 of the reply-affidavit of the Detaining Authority, it is stated as follows:-
"3. I say that as the Detaining Authority I expeditiously considered the representation of the detenu which was made on 23-08-2011. The said representation was received in my office on 24-08-2011 late in the evening. Thereafter, by letter dated 26-08-2011 the parawise comments were called from the Sponsoring Authority. This letter dated 26-08-2011 was sent through ordinary post to the Sponsoring Authority. I say that on 23-09-2011 the parawise comments were received in my office. The concerned Assistant submitted the file to the Under ::: Downloaded on - 09/06/2013 17:54:05 ::: 65 233211 Secretary on 26-09-2011. I say that during the said period there were holidays on 24-09-2011 and 25-09-2011."
54. In paragraph 5 of the reply-affidavit filed by the Deputy Secretary of the State Government, it is stated as follows:-
"5. I say that the representation dated 23-08-2011 was received in the office on 24-08-2011 late in the evening. Thereafter, by letter dated 26-08-2011 the parawise comments were called from the Sponsoring Authority. This letter dated 26-08-2011 was sent through ordinary post to the Sponsoring Authority. I say that on 23-09-2011 the parawise comments were received in the office. The concerned Assistant submitted the file to the Under Secretary on 26-09-2011. I say that during the said period there were holidays on 24-09-2011 and 25-09-2011."
55. According to Detenu Dhakne, it is a clear case of unexplained delay in deciding the representation. While considering similar grievance in the case of other two petitioners, we not only placed reliance on the reply-affidavits filed by the respondents but also various notings made in the original record produced before us. In addition to the dates referred to in the two reply-affidavits filed on behalf of the respondents, it may be useful to refer to the notings in the file of the Home Department. The representation was made by Detenu Dhakne dated 23rd August, 2011. The grievance regarding delay in deciding representation is essentially in respect of period between 26th ::: Downloaded on - 09/06/2013 17:54:05 ::: 66 233211 August, 2011 till 23rd September, 2011. The representation was received in office in Mantralaya on 26th August, 2011. Para-wise comments thereon were invited from the Sponsoring Authority. That communication was sent to the Sponsoring Authority on 26th August, 2011. The para-wise comments were received from the Sponsoring Authority on 23rd September, 2011. The other relevant events as unfolded during the intervening period, can be culled out from the notings on the file, can be stated as under.
56. The representation was received in the Office of the Joint Commissioner on 2nd September, 2011. We have already dealt with the same argument that the officers from Mantralaya should not have sent communication to the Sponsoring Authority, inviting his para-wise comments by "ordinary post". For the same reason, the explanation given by the respondents for the time between 26th August, 2011 till 2nd September, 2011 will have to be accepted. It is also noticed that 3rd and 4th September, 2011 were holidays. The representation was then received in COFEPOSA Section on 5th September, 2011. The para-
wise comments-preparation was done between 6th and 7th September, 2011. The file was then put up before the Joint Commissioner for approval on 8th September, 2011. The discussion on the said file took ::: Downloaded on - 09/06/2013 17:54:05 ::: 67 233211 place on 9th September, 2011. Once again, 10th and 11th September, 2011 were holidays. The discussion was again held on 12th September, 2011 and the final para-wise comments were approved and signed by the Joint Commissioner on 13th September, 2011. The para-wise comments were received on 14th September, 2011 and the Detaining Authority decided the representation on 27th September, 2011. The explanation as to why the representation was not decided by the Detaining Authority soon after its receipt on 14th September, 2011 has been offered. In that, in addition to the representation dated 23rd August, 2011, the detenu had sent second representation on 8th September, 2011, when his first representation was still being processed. That was received on 12th September, 2011. The para-wise comments were called in respect of that representation from the Sponsoring Authority on 13th September, 2011. The para-wise comments on the second representation were received in the office of the Detaining Authority on 23rd September, 2011. 24th and 25th September, 2011 were public holidays, being fourth Saturday and Sunday, respectively. The said comments with the endorsement by the Assistant were submitted before the Under Secretary on 26th September, 2011. The Detaining Authority eventually considered both ::: Downloaded on - 09/06/2013 17:54:05 ::: 68 233211 the representations on 27th September, 2011 and immediately communicated her decision to the detenu.
57. It is, thus, noticed that the first representation was kept pending in the office of the Detaining Authority between 14th till 23rd September, 2011, as the para-wise comments of the Sponsoring Authority on the second representation were still awaited. The Detaining Authority cannot be blamed for that situation, as it could not have dealt with the representations of the same detenu in piecemeal manner. The fact that the detenu chose to make successive representations to the same Authority does not mean that each representation should have proceeded independently. It was open to the Appropriate Authority - in particular, the Detaining Authority - to consider both the representations together and pass a common order thereon. If at all, it is the detenu who should be blamed for making successive representations. He cannot be permitted to take advantage of his own wrong, and claim that his continued detention was illegal and unconstitutional because of delay in deciding his first representation. As regards the processing of second representation, there is no manner of doubt that it has been done with utmost expedition and the final decision is taken by the Detaining Authority on ::: Downloaded on - 09/06/2013 17:54:05 ::: 69 233211 27th September, 2011 after processing the file through proper channel.
As regards the first representation, there is no reason to think that it is a case of inaction or callousness till 14th September, 2011. Thereafter, the Detaining Authority chose to keep the said representation pending for being decided together with the second representation made by the same detenu. It is not a case of the first representation having remained unattended between 14th till 23rd September, 2011 without a just cause, as such. The first representation was required to be kept aside to be decided along with the second representation, after the para-
wise comments thereon were received from the Sponsoring Authority.
As soon as the para-wise comments were received from the Sponsoring Authority on 23rd September, 2011, the same was processed with utmost despatch in the office of the Detaining Authority and final decision thereon was taken on 27th September, 2011. Taking over all view of the matter, therefore, it is not a case of delay in deciding representation by the Detaining Authority, as is sought to be contended.
58. Since no other ground has been urged in the petition filed on behalf of Detenu Dhakne, even that petition should fail, being devoid of merits.
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59. Accordingly, all the three petitions are dismissed.
60. The original records of the Sponsoring Authority as well as the Detaining Authority in all the three cases be returned to the Public Prosecutor forthwith.
P.D. KODE, J. A.M. KHANWILKAR, J.
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