2015 (3) TMI 775 - HC - Customs

Court upholds detention orders in writ petition dismissal, finds actions appropriate, timely consideration, verified facts, no rights violation.

The court dismissed the writ petition, upholding the validity of the two detention orders issued in continuation, finding the Sponsoring Authority's ... Detention order - Offence committed under Section 135 of the Customs Act, 1962. - Detention order passed under Section 3(1)(i) and 3(1)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - smuggling of goods and illegal transportation and concealment of contraband goods - Held that:- The contentions have to be rejected for several reasons. Firstly, the contention of the petitioner that he knows and understands only Bengali is inaccurate. In fact, we feel that the petitioner has deliberately projected and misstated that he does not know and understand English. Given his background, it appears that he knows and understands English perfectly well - This apart, it would be fallacious and wrong to hold that the failure to supply Bengali translation of the standard terms and conditions and other portions/ notings on the documents is fatal to the validity of the detention order and would merit setting aside or quashing of the detention. The contention of the petitioner that though he was furnished with the Bengali translation of the letter dated 27th November, 2013, he wasn't supplied with the English version of the same, must perish for the same reason. Once the petitioner accepts that he was furnished with the Bengali translation of the said letter, which he can read and understand, it should be held that there was adequate and proper compliance with the constitutional mandate. first detention order was passed after examining the relevant facts when the petitioner was not in detention. Bail granted by the trial Court had been cancelled, but the petitioner had not surrendered or arrested. Subsequently, the petitioner surrendered on 11th June, 2014 and till then the detention order had not been served. Thus, the Sponsoring Authority deemed it appropriate to intimate the said factual position to the Detaining Authority to ascertain whether they should execute the said order. The Detaining Authority after examining the relevant facts, passed an additional detention order in continuation of the earlier order dated 27th May, 2014, elucidating reasons why the detention order dated 27th May, 2014, should still be served and executed. We do not think that the letter/ order dated 13th June, 2014, which purports to provide additional grounds of detention can stand on its own. It is not by itself a separate and independent detention order. It is necessarily an adjunct and a corollary to the earlier order dated 27th May, 2014. It would be incorrect and improper to state that the authorities had not ascertained full facts. Filing of charge sheet on the completion of investigation is a separate matter. In the present case, the contention of the respondents is that there were several collateral and ancillary aspects, which required consideration before the charge sheet could be filed. We do not think that this case can be equated with a case of incomplete or inchoate investigation. The detention order is a speaking order and is crystal clear on the factual narration and factual matrix. The object and purpose of preventive detention which is anticipatory and precautionary in nature in the said sense does not relate to an offence punishable in criminal proceedings. A preventive detention order is not a parallel proceeding. - No merit in petition - Decided against petitioner. Issues Involved:1. Validity of two detention orders under Section 3(1) of the COFEPOSA Act.2. Failure of Sponsoring Authority to inform Detaining Authority of relevant facts/documents.3. Central Government's failure to consider the petitioner's representation before forwarding the case to the Advisory Board.4. Detention order passed without verifying the veracity of facts.5. Failure to provide complete and legible documents in the language known to the petitioner.Issue-wise Detailed Analysis:1. Validity of Two Detention Orders under Section 3(1) of the COFEPOSA Act:The petitioner contended that the issuance of two detention orders dated 27th May 2014 and 13th June 2014 was impermissible under Section 3(1) of the COFEPOSA Act. The court held that the two orders should be read in seriatim and together, not as separate orders. The second order was an adjunct to the first, necessitated by the petitioner's surrender and subsequent judicial custody. The court referenced the Supreme Court judgment in Binod Singh vs. District Magistrate, Dhanbad, emphasizing that changes in the factual background should be brought to the Detaining Authority's notice. The court concluded that the second order was not independent but a continuation of the first, addressing the changed circumstances.2. Failure of Sponsoring Authority to Inform Detaining Authority of Relevant Facts/Documents:The petitioner argued that the Sponsoring Authority failed to forward relevant facts/documents to the Detaining Authority after the first detention order but before the second. The court rejected this, reiterating that the second order was not a new detention order but a necessary adjunct to the first, addressing the petitioner's changed situation post-arrest. The court found no requirement for a comprehensive review of all documents exchanged during the intervening period.3. Central Government's Failure to Consider the Petitioner's Representation:The petitioner claimed that the Central Government failed to consider his representation before forwarding the case to the Advisory Board, violating the principles laid out in Jayanarayan Sukul vs. State of West Bengal. The court cited K.M. Abdulla Kunhi vs. Union of India, which clarified that representations should be considered expeditiously but could be forwarded to the Advisory Board if time constraints exist. The court noted that the representation was received on 11th July 2014, comments were obtained, and it was decided on 21st July 2014, within a reasonable time frame. The Advisory Board was informed of the pending representation, and the hearing was scheduled for 16th August 2014.4. Detention Order Passed Without Verifying the Veracity of Facts:The petitioner argued that the detention order was passed without verifying the facts, as the Sponsoring Authority admitted incomplete investigations. The court dismissed this, stating that preventive detention is anticipatory and precautionary, not contingent on the completion of criminal investigations. The court found the detention order to be a speaking order, clear on the factual matrix, and not equated with incomplete investigations.5. Failure to Provide Complete and Legible Documents in the Language Known to the Petitioner:The petitioner claimed he was not provided with complete and legible documents in Bengali, the language he understood. The court found this contention inaccurate, noting that the petitioner could read and write English, as evidenced by his signatures on various documents. The court referenced M. Kudubdeen vs. Union of India, where non-supply of translated documents did not affect the detenu's right to make an effective representation. The court concluded that the failure to provide Bengali translations of certain standard terms and conditions did not merit quashing the detention order.Conclusion:The court dismissed the writ petition, finding no merit in the petitioner's contentions. The two detention orders were validly issued in continuation, the Sponsoring Authority's actions were appropriate, the Central Government's consideration of the representation was timely, the detention order was based on verified facts, and the petitioner's rights were not violated by the alleged failure to provide complete translations.