Gujarat High Court
Jitendrakumar Dhanjibhai Rokad vs Union Of India on 27 February, 2020
Author: S.H.Vora
Bench: S.H.Vora
C/SCA/18938/2019 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18938 of 2019
With
CIVIL APPLICATION (FOR TEMPORARY BAIL) NO. 1 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 18938 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.H.VORA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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JITENDRAKUMAR DHANJIBHAI ROKAD
Versus
UNION OF INDIA
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Appearance:
MR SS SANJANWALA, SR. ADVOCATE with MR DILIP L KANOJIYA(3691)
for the Petitioner(s) No. 1
MR DEVANG VYAS(2794), ASST. SOLICITOR GENERAL OF INDIA with
MR HARSHEEL D SHUKLA(6158) for the Respondent(s) No. 1 - 3
MS DIVYANGANA ZALA, AGP for the Respondent(s) No. 4
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CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 27/02/2020
CAV JUDGMENT
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C/SCA/18938/2019 CAV JUDGMENT
1. Rule. Learned advocate Mr. Harsheel Shukla waives service of notice of rule for respondent Nos.1 to 3 and learned AGP waives service of notice of rule for respondent No.4. With the consent of learned Counsel appearing for the respective parties, the matter is taken up for hearing today.
2. By way of this writ petition under Article 226 of the Constitution of India, the petitioner has challenge detention order dated 2.8.2019 bearing F No.PD-12002/17/2019- COFEPOSA annexed at Annexure A.
3. As such, the impugned order of detention is challenged on various grounds, but at the end of the arguments, the Court noticed that there is no nexus or live link between the alleged illegal activity and purported claim of the detaining authority, as the alleged illegal activity had been committed between January, 2014 and July, 2015 while the impugned order has been passed on 2.8.2019. At this juncture, it is relevant to reproduce ground Xli.
"You i.e. Shri Jitendrakumar Dhanjibhai Rokad have abetted in smuggling of gold as admitted by you that you along with Shri Mehul Bhimani had invested money with Shri Rutugna Trivedi which was used for financing smuggling of gold into India and that you have received 33% profit share. Shri Jitendra Rokad i.e. you have admitted that during the period from January, 2014 to July 2015, 185 kgs of Gold valued at Rs.52.35 crores was smuggled into India which was financed by you and Shri Mehul Bhimani and that they had received their share of the profits from the sale of the smuggled gold. These facts were also confirmed by Shri Mehul Bhimani in his Statement recorded on 29/6/2019."
4. According to the materials placed before the detaining Page 2 of 6 Downloaded on : Fri Feb 28 03:16:00 IST 2020 C/SCA/18938/2019 CAV JUDGMENT authority, the petitioner and other co-detenue Mr. Mehul Bhimani have financed smuggling of gold into India and the petitioner conspired with his associates and smuggled about 185 kgs gold valued at Rs.52.35 crore. At this juncture, it is relevant and important to reproduce the judgment of the Hon'ble Delhi High Court rendered in the matter of Mr. Mehul Bhimani and more particularly, para 3 and 6, which are reproduced hereunder:-
"3. Mr. Narsimha, learned senior counsel for the petitioner points out that the Supreme Court in the Pramodgiri Premgiri Goswami Vs. Union of India & Ors., W.P. (Crl.) No. 359/2019 decided on 27th January, 2020 has quashed a similar detention order arising out of the same smuggling activities on the ground that there was no proximate link between the alleged events and the detention order. The aforesaid order dated 27th January, 2020 passed by the Supreme Court is reproduced hereinbelow:-
The petitioner has knocked at the doors of this Court under Article 32 of the Constitution of India challenging an order dated 15.11.2019 made under the COFEPOSA Act, 1974. In the grounds of detention it is clearly stated that the petitioner appears to be part of a ring of smugglers, and between March, 2013 and March, 2015 731.705 Kgs. of gold were seized, which trace themselves back to this ring, worth around Rs. 204.60 Crores. The petitioner's statement was also recorded on 24/25.09.2019 which, however, was retracted on 27.09.2019. After hearing Mr. Saurav Kirpal, learned Advocate for the petitioner and Mr. K.M. Nataraj, learned Additional Solicitor General for the Union of India, this petition is being disposed of on the ground that there is no proximate link between the events of March, 2013 and March, 2015 and the detention order, which is over four years later. On this ground alone, this writ petition is allowed. The detenue be released immediately.Page 3 of 6 Downloaded on : Fri Feb 28 03:16:00 IST 2020 C/SCA/18938/2019 CAV JUDGMENT
6. Having heard learned counsel for the parties as well as having perused the paper book this Court finds that the impugned detention order is based upon an alleged admission by the petitioner that he had financed smuggling of 185 Kgs. of gold valued at Rs. 52.35 crores between January, 2014 and July, 2015. The relevant portion of the impugned detention order is reproduced hereinbelow:-
"You i.e. Shri Mehul Rasikbhai Bhimani have abetted in smuggling of gold as admitted by you that you along with Shri Jitendra Rokad had invested money with Shri Rutugna Trivedi which was used for financing smuggling of gold into India and that your had received 33% profit share. You i.e. Shri Mehul Rasikbhai Bhmani have admitted that during the period from January, 2014 to July, 2015, 185 kgs of Gold valued at Rs.52.35 crores was smuggled into india which was financed by you and Shri Jitendra Rokad and that they had received their share of the profits from the sale of the smuggled gold. These facts were also confirmed by Shri Jitendra Rokad in his statement recorded on 29.06.2019. (emphasis supplied)"
5. In view of the decision in case of Pramodgiri Goswami and Mehul Bhimani and the aforesaid ground of detention, it applies to the petitioner, because there is no proximity link between the events of January, 2014 to July 2015 and that the impugned detention order, which has been passed nearly after four years and therefore, on the ground of inordinate delay in passing the detention order against the present petitioner vitiates the detention itself.
6. In the case on hand, the last and first prejudicial act recorded against the petitioner was in the month of January, 2014 to July, 2015, whereas the detention order is passed on Page 4 of 6 Downloaded on : Fri Feb 28 03:16:00 IST 2020 C/SCA/18938/2019 CAV JUDGMENT 2.8.2019, which is after a period of four years. As such test of proximity is not mechanical test by merely counting number of months between the offending acts and the order of detention. But, when there is undue delay, than the Court has to scrutinize whether the detaining authority has satisfactorily examined such a delay occurred. No any reasonable explanation is provided by the detaining authority and in absence of reasonable explanation to show that the casual connection has been broken and it was till alive at the time of passing the detention order and then, it is a matter of fact that no any offence is registered against the petitioner either by Custom Department or State or Central Department about prejudicial activities and therefore, in view of decision rendered in case of T.A. Abdul Rehman v/s. State of Kerala reported in (1989) 4 SCC 741, wherein the Hon'ble Apex Court, in para 10, has pointed out as under:
"10. The conspectus of the above decisions can be summarised thus : The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the Court has to investigate whether the causal connection has been broken in the circumstances of each case."Page 5 of 6 Downloaded on : Fri Feb 28 03:16:00 IST 2020 C/SCA/18938/2019 CAV JUDGMENT
7. Thus, considering the decision of the Hon'ble Apex Court in case of co-detenue Pramodgiri rendered by the Hon'ble Apex Court and decision in case of co-detenue Mehul Bhimani rendered by the Delhi High Court, the petitioner's case stands on same footings and therefore, present petition requires to be accepted.
8. The offshoot of above discussion is such that the detention order stands vitiated on account of inordinate and unexplained delay in passing detention order. So on this ground, present petition deserves to be accepted and accordingly, it is hereby allowed. Detention Order dated 2.8.2019 bearing F No.PD-12002/17/2019-COFEPOSA is hereby quashed and set aside. The petitioner shall be released forthwith, if he is not required in any other offence. Direct service is permitted, today.
9. In view of above, Civil Application would not survive. Accordingly, Civil Application stands disposed of.
(S.H.VORA, J) SHEKHAR P. BARVE Page 6 of 6 Downloaded on : Fri Feb 28 03:16:00 IST 2020